Madras High Court
G.Karthic Kannan vs The State Of Tamil Nadu on 17 July, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.07.2012
CORAM
THE HONOURABLE MR. JUSTICE VINOD K.SHARMA
W.P.No.28905 of 2011 and M.P.No.2 of 2011
G.Karthic Kannan ... Petitioner
Vs.
1 The State of Tamil Nadu
Rep. By its Secretary to Govt.,
Housing and Urban Development Dept.,
Fort St. George,
Chennai 600 009.
2 The District Revenue Officer,
Tiruppur District at Tiruppur 1.
3 Tamil Nadu Housing Board
Rep. By its Managing Director,
No.331, Anna Salai, Nandanam,
Chennai 600 035. ... Respondents
Amended Prayer: (vide order dt.22.12.2011)
The writ petition has been filed under Article 226 of the Constitution of India for issuance of a writ in the nature of Certiorari, to quash the impugned orders of the first respondent vide letter No.26505/LA3(1)/2009-14 dated 03.10.2011 in so far as it relates to the petitioner's lands comprised in S.No.359/2, 369 and 372/1, situated at Chithrauthanpalayam Village, Dharapuram Town and Taluk, Erode district, now Tiruppur district, measuring to an extent of 2.64.0 hectares, 3.53.5 hectares and 2.12.0 hectares respectively with consequential direction to the respondents to exclude and withdraw the above lands from the land acquisition proceedings and transfer the revenue entries including the patta in favour of the petitioner.
For Petitioner : Mr.K.Premkumar
For Respondents 1&2 : Mr.E.Sampathkumar, Spl.G.P.
For Respondent-3 : Mr.S.Diwahar
*****
O R D E R
The petitioner prays for issuance of a writ in the nature of Certiorari, to quash the order letter No.26505/LA3(1)/2009-14 dated 03.10.2011 with consequential relief of directing the respondents to exclude the above land from land acquisition proceedings and re-transfer the land and thereby transfer the revenue entries including patta in favour of the petitioner.
2 The grandfather of the petitioner was original owner of the land in S.No.359/2, 369 and 372/1, situated at Chithrauthanpalayam Village, Dharapuram Town and Taluk, Erode district, now Tiruppur district, measuring 2.64.0 hectares, 3.53.5 hectares and 2.12.0 hectares respectively.
3 On the death of grandfather, petitioner's grandmother Tmt.B.Hamsaveni and his father Thiru. Guruvannan inherited the property in equal shares.
4 This land was covered under notification issued under Sec.4(1) of the Land Acquisition Act showing the intention of the Government to acquire lands for construction of house by the Tamil Nadu Housing Board, under LIG/MIG/HIG Scheme at Chithrauthan-palayam Village known as Neighbourhood Scheme.
5 The notification under Sec.4 of the Land Acquisition Act, was followed by the declaration under Sec.6 of the Act on 10.07.1985.
6 The father of the petitioner filed W.P.No.8583 of 1985, in this Court to challenge the acquisition proceedings, but during pendency of the writ petition, he died on 16.09.1992 leaving behind his wife Tmt.Latha and two minor sons; i.e. petitioner and his younger brother Thiru.Vishnuvardhan, and his mother Tmt.B.Hamsaveni, as legal heirs, who were brought on record as legal representatives to prosecute the writ petition.
7 The submission of the petitioner is that at the time of final hearing of the writ petition, it was brought to the notice of this Court, the orders passed by the State in exempting the land covered under declaration under section 6 from acquisition proceedings, under section 48 of the Land Acquisition Act.
8 The writ petition filed by the petitioner was disposed of by this Court on 11.02.1994 with liberty to the petitioner to approach the State Government for seeking exemption of their land from acquisition. It was directed that the State Government should consider and pass appropriate orders on the representation to be filed by the petitioners keeping in view of the exemption granted to other adjacent land owners.
9 It is submitted that grandmother of the petitioner Tmt.B.Hamsaveni died on 18.08.2003, therefore, the petitioner along with his mother Tmt.Latha and his younger brother Thiru.Vishnuvaradhan became absolute owner of the land by inheritance of her share also.
10 The mother of the petitioner represented to the Government on 31.03.1994 seeking exemption from the land acquisition proceedings. The request of mother of the petitioner was rejected by the State Government vide letter No.49874/NA3(1)/94-7 dt.08.05.2000.
11 The order of rejection was challenged by the petitioner, his brother and his mother by filing W.P.No.11494 of 2000, which was allowed by this Court on 03.08.2010 and the case was remitted back to the Government to pass fresh orders under Sec.48 of the Land Acquisition Act within four months by taking note of withdrawal/ exemption of the land acquisition proceedings qua several similarly placed persons.
12 The younger brother of the petitioner Thiru. Vishnuvaradhan and his mother Tmt.Latha died, and now, the petitioner is the sole legal heir. The petitioner therefore submitted a fresh representation on 28.08.2010 to the State Government seeking exemption and withdrawal of the land acquisition proceedings in respect of the land under ownership of the petitioner.
13 It was submitted by the petitioner, that land comprised in S.No.360 in the same Village covered under Neighbourhood Scheme, was exempted from land acquisition proceedings.
14 Similarly, land comprised in S.No.362 and 363 new Town Survey Nos.11 and 10 measuring 5.36 acres and 4.95 acres was also exempted by dropping acquisition proceedings, and patta has also been transferred back from the name of Tamil Nadu Housing Board, to the names of the respective land owners.
15 On failure of the respondents to take a decision on the representation of the petitioner, a contempt notice was issued to the respondent No.2 on 06.09.2011. On receipt of contempt notice, the request of the petitioner for dropping acquisition proceedings qua the land of the petitioner was rejected.
16 The order has been passed on the recommendation by the District Revenue Officer (Schemes), Tamil Nadu Housing Board, pointing out that the land of the petitioner was situated in the middle of the Scheme area which is lying vacant, whereas the surrounding areas are developed by Tamil Nadu Housing Board. The land of the petitioner therefore is required for the purpose for which it was acquired. The stand of the respondent itself shows that the decision was not taken by the State independently but was on recommendation of Tamil Nadu Housing Board, which did not have any role to play in decision making.
17 On the pleadings referred to above, it is submitted that the notification issued under Sec.4(1), declaration under Sec.6 as well as the impugned order declining the request of the petitioner for exempting his land from land acquisition proceedings are illegal, unlawful, arbitrary and discriminatory, therefore, are liable to be set aside.
18 It may be noticed here that the challenge to the notification under Sec.4 and 6 of the Land Acquisition Act cannot be sustained in law as admittedly, prayer of the petitioner was declined in W.P.No.8583 of 1995 though liberty was granted to the petitioner to approach the Government for dropping the acquisition proceedings, qua land of the petitioner.
19 The writ petition is opposed by the respondent No.2, on the ground that the Tamil Nadu Housing Board had requested for acquisition of land measuring 336.30 acres for construction of houses in Dharapuram Town. On the request of the Tamil Nadu Housing Board, land acquisition proceedings were initiated by the then Special Tahsildar, Neighbourhood Scheme, Dharapuram to acquire the land. The notification issued under Sec.4 and 6 of the Land Acquisition Act, were challenged by Thiru B.Guruvanannan, predecessor -in-interest of the petitioner, and interim stay was granted by this Court. After disposal of the writ petition, an enquiry was conducted and award was passed on 28.01.1988. The owners of the land refused to accept the compensation, therefore, reference was made under Sec.18 of the Land Acquisition Act.
20 The reference was dismissed in default by the Court on 07.08.1989 and a restoration petition was filed, but the reference was again dismissed on 14.03.1991.
21 The writ petition filed by the petitioner was dismissed on 11.02.1994. This Court however had directed the respondents to dispose of the representation filed by the mother and the petitioner represented through her mother being minor, for exemption or withdrawal of their land from acquisition. The request was rejected on 8.4.2000.
22 The petitioner's mother Tmt.Latha again filed writ petition in this Court, and the order earlier passed in rejecting the representation was reiterated. This Court vide order dated 3.8.2010 again allowed the writ petition filed by the mother of the petitioner and directed the respondents/State to consider the request of the petitioner under Sec.48 of the Land Acquisition Act.
23 The stand of the respondents, that in the case of the petitioner, the land acquisition process stands completed, as the award was passed in respect of the land falling in S.No.359/2, 369 and 370/1. The owners however had refused to accept the compensation, a reference filed under Sec.18 of the Act was made which has also been dismissed. It is admitted that the possession has not been taken and the petitioner is in possession of the land even after 25 years of acquisition, the respondents have also not placed on record any material showing the offer made to the petitioner or his predecessor for acceptance of compensation.
24 It is the stand of the respondents that the request of the petitioner has been considered and rejected on merit, but the possession of land could not be taken, as the land owners had refused to accept the compensation. It is submitted that land in dispute is required for public purpose by the Tamil Nadu Housing Board.
25 The learned counsel for the petitioner, vehemently contended, that this Court in W.P.No.21440 of 2005 decided on 17.03.2008 (J.Prabakaran and two others vs. State of Tamil Nadu and two others) has quashed the notification issued under Sec.4 and 6 of the Act, on the ground that for the last 25 years, the land has not been utilised. This judgment cannot help the petitioner as to challenge the land acquisition proceedings stands rejected by this Court, therefore, petitioner cannot be permitted to re-open the concluded matter, in view of the subsequent judgment that in view of settled law that concluded matter cannot be reopened in view of subsequent declaration of law. Even otherwise, on garb of challenge to the order passed under Sec.48 of the Land Acquisition Act, the Notification under Sec.4 & 6 of the Act cannot be challenged.
26 The learned counsel for the petitioner referred to the judgment of this Court in W.P.No.11494 of 2000 decided on 03.08.2010 (G.Latha and 2 others vs. State of Tamil Nadu and 3 others) earlier filed by the petitioner to challenge the order of rejection of their representation, to contend, that the dismissal of the earlier writ petition filed by the father of the petitioner to challenge the declaration under Sec.6, was not an impediment for Government to consider the request of the petitioner under Sec.48 of the Land Acquisition Act. The reading of the order passed by this Court shows that the respondents were directed to consider the request of the petitioner for exemption of land from acquisition under Sec.48 of the Land Acquisition Act. It was further directed that while doing so, the Government should consider the reasons for dropping the acquisition proceedings qua land of other land owners, similarly situated.
27 The contention of the learned counsel for the petitioner is that State Government has rejected the representation on the same grounds which were not accepted by this Court. The impugned order therefore, cannot be sustained, being not only arbitrary, but also contemptuous in nature. In order to appreciate the arguments, it is necessary to reproduce the impugned order which reads as under:
"I am directed to invite attention to your letter second cited, wherein you have requested to exclude the land in T.S.No.359/2 etc., in Chithirvuthampalayam, Dharapuram Taluk, Tiruppur District.
2 The Tamil Nadu Housing Board in its resolution No.285 dated 12.10.1981 resolved to acquire 336.30 acres in Chithirvuthampalayam, Dharapuram Taluk, Tiruppur District for construction of houses under LIG/MIG/HIG in Dharampuram Neighbourbood Scheme. The 4(1) Notification was approved in G.O.(Ms.)No.740, Housing and Urban Development Department dated 30.07.1982 and published in the Tamil Nadu Government Gazette Part II Section 2 on 11.08.1982. The substance of the notification was published on 15.09.1982 as per rules. The Award amount of Rs.1,72,041.70 passed in Award No.4/87 for the land in question over an extent of 8.29.5 Hectares (20.49 acres) in Survey No.359/2, 369 and 372/1 8.29.5 Hectares (20.49 acres) in Survey No.359/2, 369 and 372/1 Chithirvuthampalayam, Dharapuram Taluk,deposited in the Court was refunded to the Tamil Nadu Housing Board by Land Acquisition officer due to continuous Court cases. In the same analog, the possession of land was not handed over by Land Acquisition Officer to the Tamil Nadu Housing Board. Against the above Land Acquisition Proceedings Thiru Guruvannan (late) (father of the petitioner) filed a Writ petition No.8583/1985 before the Hon'ble High Court of Judicature, Madras seeking exclusion from Land Acquisition for the land in question. Meanwhile, the petitioner expired on 14.09.1992. However, the Writ petition was disposed on 11.02.1994 by Hon'ble High Court, Madras with direction to consider the request of the petitioner on receipt of representation of the petitioner. The representation filed by the wife (Tmt.G.Latha) of the petitioner was rejected by the Government on 08.05.2000. Aggrieved this, Tmt.G.Latha and her two minor children filed Writ petition No.5227 of 2000 seeking withdraw from the Land Acquisition for the land in question. The same was also disposed of with direction to the Government to consider and pass orders. As there was demand for Housing by the general public the Government rejected the request of the petitioner and reiterated in their letter No.21167/LA3-1/2000-2 dated 14.09.2000 stating that the orders passed in the Government letter 49874/LA3-1/1994-7, dated 08.05.2000 is in order. Thereafter the petitioner again filed the Writ petition No.11494/2000 before Hon'ble High Court of Madras challenging the orders dated 08.05.2000 passed by the Government.
3 Earlier based on the report of the then Collector of Periyar District, the Commissioner of Land Administration recommended for exclusion of certain lands from the acquisition in view of the existence of structure like houses, schools, industries and approved layout etc. Accordingly, the Government in its letter No.15959-A/S-1/88-5, Housing and Urban Development Department in its letter dated 06.12.1988 has issued orders to exclude an extent of 99.18 acres of land in Chithirvuthampalayam, Dharapuram Taluk, Periyar District (now Tiruppur district) for Land acquisition. The petitioner's land bearing S.No.359/2, 369, 372/1 measuring 20/49 acres is situated in the middle of the Scheme area which are lying vacant and the surrounding areas are well developed by Tamil Nadu Housing Board. Hence, the land in question is necessarily required for proposing comprehensive housing scheme in this area and absolutely required for the purpose for which it was acquired.
4 The Government have carefully examined your request in detail and the request to exclude the land in T.S.No.359/2 etc. in Chithirvuthampalayam, Dharapuram Taluk Tiruppur District is rejected."
28 The learned counsel for the petitioner challenged the impugned order being discriminatory.
29 It is not disputed that the possession of the land is still with the petitioner. In support of this contention, that the petitioner is entitled to exemption of his land from acquisition, the learned counsel placed reliance on the judgment of the Hon'ble Supreme Court in Hari Ram & another vs State of Haryana and others (2010(2) CTC 336) wherein the Hon'ble Supreme court was pleased to lay down as under:
"24. As a matter of fact, lands of more than 40 landowners out of the same acquisition proceedings have been released by the State Government under Section 48 of the Act. Some of the release orders have been passed in respect of landowners who had not challenged the acquisition proceedings and some of them had challenged the acquisition proceedings before the High Court and whose cases were not 2 recommended by Joint Inspection Committee for withdrawal from acquisition and whose writ petitions were dismissed. Some of these landowners had only vacant plots of land and there was no construction at all. In most of these cases, the award has been passed and, thereafter, the State Government has withdrawn from acquisition. It is not the case of the respondents that withdrawal from acquisition in favour of such landowners has been in violation of any statutory provision or contrary to law. It is also not their case that the release of land from acquisition in favour of such landowners was wrong action on their part or it was done due to some mistake or a result of fraud or corrupt motive. There is nothing to even remotely suggest that the persons whose lands have been released have derived the benefit illegally. As noticed above, prior to October 26, 2007, the State Government did not have uniform policy concerning withdrawal from acquisition. As regards the guidelines provided in the letter dated June 26, 1991, this Court has already held that classification on the basis of nature of construction cannot be validly made and such policy is not based on intelligible differentia and a rational basis. What appears from the available material is that for release of the lands under the subject acquisition, no policy has been adhered to. This leads to an irresistible conclusion that no firm policy with regard to release of land from acquisition existed. It is true that any action or order contrary to law does not confer any right upon any person for similar treatment. It is equally true that a landowner whose land has been acquired for public purpose by following the prescribed procedure cannot claim as a matter of right for release of his/her land from acquisition but where the State Government exercises its power under Section 48 of the Act for withdrawal from acquisition in respect of a particular land, the landowners who are similarly situated have right of similar treatment by the State Government. Equality of citizens' rights is one of the fundamental pillars on which edifice of rule of law rests. All actions of the State have to be fair and for legitimate reasons. The Government has obligation of acting with substantial fairness and consistency in considering the representations of the landowners for withdrawal from acquisition whose lands have been acquired under the same acquisition proceedings. The State Government cannot pick and choose some landowners and release their land from acquisition and deny the same benefit to other landowners by creating artificial distinction. Passing different orders in exercise of its power under Section 48 of the Act in respect of persons similarly situated relating to same acquisition proceedings and for same public purpose is definitely violative of Article 14 of the Constitution and must be held to be discriminatory. More so, it is not even the case of the respondents that release of land from acquisition in favour of various landowners, as noticed above, was in violation of any statutory provision or actuated with ulterior motive or done due to some mistake or contrary to any public interest. As a matter of fact, vide order dated August 19, 2008, this Court gave an opportunity to the State Government to consider the representations of the appellants for release of their land and pass appropriate order but the State Government considered their representations in light of the policy dated October 26, 2007 ignoring and overlooking the fact that for none of the landowners whose lands have been released from acquisition, the policy dated October 26, 2007 was applied. The State Government has sought to set up make believe grounds to justify its action that development planning has been kept into consideration and that the appellants have been offered developed plots of double the area of construction while the fact of the matter is that in some cases where the plots were vacant and had no construction, the entire plot has been released from acquisition and also the cases where one room or two rooms construction was existing, the whole of plot has been released. While releasing land of more than 40 landowners having plots of size from 150 sq. yards to 1500 sq. yards, if development plan did not get materially disturbed in the opinion of the State Government, the same opinion must hold good for the appellants' lands as well. It is unfair on the part of the State Government in not considering representations of the appellants by applying the same standards which were applied to other landowners while withdrawing from acquisition of their land under the same acquisition proceedings. If this Court does not correct the wrong action of the State Government, it may leave citizens with the belief that what counts for the citizens is right contacts with right persons in the State Government and that judicial proceedings are not efficacious. The action of State Government in treating the present appellants differently although they are situated similar to the land owners whose lands have been released can not be countenanced and has to be declared bad in law."
30 The reliance was also placed on the judgment of the Hon'ble Supreme court in Sube Singh and others vs State of Haryana and others [(2001)7 SCC 545], wherein it was held that classification of the existing construction for exemption from acquisition is arbitrary and discriminatory.
31 Finally reliance was placed on the judgment of the Hon'ble Division Bench of this Court in Tamil Nadu Housing Board vs. Uma Maheswari Ramasamy and others (2011(5) CTC 503), in support of challenge to the impugned order.
32 The learned counsel for the respondents, opposed the writ petition on the ground that the petitioner has no legal right to seek withdrawal of acquisition proceedings, as the power under Sec.48 of the Land Acquisition Act, leaves discretion with the State Government to exempt the land from acquisition, but it does not give any legal right to the land owner to seek exemption from acquisition of land required for public purpose, which is acquired by following due process of law.
33 The learned counsel for the respondents further contended that the acquisition proceedings are complete, therefore, in view of the law laid down by this Court in W.P.No.25961 of 2011 decided on 20.06.2012 (K.Duraisingam vs. State of Tamil Nadu) the petitioner cannot claim relief of re-conveyance of land needed for public purpose.
34 On consideration, I find this writ petition deserves to succeed. The judgment of this Court in K.Duraisingam vs. State of Tamil Nadu (supra) has no application to this case, as in the said case, the petitioner had invoked Sec.48-B of the Land Acquisition Act, for re-conveying land after it has been handed over to the Tamil Nadu Housing Board. Thereafter, it was held that after the land had been handed over to housing board, the State Government has no jurisdiction to entertain representation either under Sec.48 or 48-B of the Act. Whereas in the case in hand, it is admitted case of the respondents that the possession has not been taken over by the Tamil Nadu Housing Board, and that the possession of land is still with the petitioner for want of payment of compensation. It is also admitted that amount of compensation deposited by Tamil Nadu Housing Board has been returned.
35 The Hon'ble Supreme Court in the case of Hari Ram & another vs State of Haryana and others (supra), has laid down that the Government has the power to withdraw from acquisition at any stage before the possession is taken over.
36 The impugned order rejecting the representation cannot be sustained in law because:-
(a) The impugned order is a on speaking order, as it does not give reasons which weighed with the State Government in rejecting the request of the petitioner, the operative part of the impugned order reads as under:
"The Govt. have carefully examined your request in detail and the request to exclude the land in T.S.No.359/2 in Chithirvuthampalayam, Dharapuram Taluk Tiruppur District is rejected."
This order cannot be said to be a speaking order or meeting with the directions issued by this court. Though it is mentioned in the impugned order that some of the lands were excluded in view of existence of structure like houses, schools, industries and approved lay out etc., but no details are forthcoming, inspite of the fact that positive stand of the petitioner was that some of the lands exempted had no constructions at all.
(b) That this Court quashed the acquisition proceedings, because of delay of 25 years in implementing the project. The stand of the respondent that possession was not taken on account of refusal by land owners to accept compensation cannot be accepted, as it was open to the State Government to take possession by offering the compensation to the land owner. Instead of implementing the project, the State Govt. returned the amount deposited by Tamil Nadu Housing Board. It will therefore be unjust, to take land of the petitioner at the market rate as on the date of issuance of notification under Sec.4 of the Act.
(c) It is not the case of the respondents that withdrawal from acquisition in favour of other land owners was in violation of any statutory provisions or contrary to law, or that the decision was wrong or due to fraud or misrepresentation. There were no guidelines issued by the State Government to release the land under construction or those lands where there was approved lay out plan. In absence of any policy, it was not open to release the land by adopting pick and close method. The order does not disclose, or give details, of the lands exempted and reasons for withdrawal from acquisition. The vague and general reason that the exempted lands had construction etc. cannot be accepted.
(d) That the impugned order is violative of Article 14 of the Constitution of India, as the Government has passed different orders in exercise of powers under Sec.48 of the Act, in respect to persons similarly situated relating to same acquisition proceedings and for the same public purpose.
(e) The impugned order shows that the State Govt. has set up make believe grounds to justify its action in rejecting the representation. It is unfair on the part of the State Govt. in not considering the representation of the petitioner by applying the same standard which were applied to other land owners.
(f) In absence of any Govt. policy of the State, it was not open to catagorise the land owners for exercise of jurisdiction under Sec.48 of the Act.
37 Admittedly, inspite of passing award on 20.01.1988, no steps were taken by the respondents to take possession of the land. As already observed, the stand of the respondents that the possession were not taken merely because land owner refused to receive compensation cannot be accepted, as the respondents cannot be allowed to discriminate with the petitioner after 25 years of acquisition based on artificial classification.
38 The reason given to discriminate the petitioner in rejecting the request of the petitioner, cannot be sustained in view of the law laid down by the Hon'ble Supreme Court in Sube Singh and others vs State of Haryana and others (supra).
39 Consequently, this writ petition is allowed. The impugned order is set aside, and the case is remitted back to the respondent No.1, to take a fresh decision on the representation filed by the petitioner, taking note of the observation made hereinabove.
VINOD K.SHARMA, J.
vaan 40 The needful be done within three months of the receipt of certified copy of this order.
Consequently, M.P.No.2 is closed.
No cost.
17.07.2012 Index: Yes/No Internet:Yes/No vaan To 1 The Secretary to Govt., State of Tamil Nadu, Housing and Urban Development Dept., Fort St. George, Chennai 600 009.
2 The District Revenue Officer, Tiruppur District at Tiruppur 1.
3 The Managing Director, Tamil Nadu Housing Board, No.331, Anna Salai, Nandanam, Chennai 600 035.
Pre-Delivery order in W.P.No.28905 of 2011 and M.P.No.2 of 2011 DATED: 17. 07.2012