Madras High Court
Sugunammal vs The Principal Secretary To ... on 23 November, 2021
W.P.No.14644 of 2012 etc. batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.11.2021
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.Nos.14644, 14645, 15011 to 15016, 15032 to 15041
and 15043 to 15045 of 2012
M.P.Nos.1 & 2 (20 Nos) 4 & 4 of 2012 and
W.M.P.Nos. 23002 to 23018 of 2016
W.P.No.14644 of 2012:
Sugunammal ... Petitioner
Vs
1.The Principal Secretary to Government,
Government of Tamilnadu,
Energy C-1, Department,
Fort St. George,
Chennai - 9.
2.The District Collector,
Vellore District,
Vellore.
3.The Revenue Divisional Officer,
Vellore.
4.The Tahsildar,
Katpadi,
Vellore District.
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5.Power Gird Corporation of India Ltd.,
Rep. by its Deputy General Manager,
A.Surendiran,
No.2 (Old No.160) I Lane
Bharathi Nagar, North Usman Road,
T.Nagar, Chennai - 600017. ...
Respondents
(R5 impleaded as per order dated 14.06.2012
in M.P.No.3 of 2012 in W.P.No.14644 of 2012)
Prayer: Writ Petition is filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, calling for the records relating to the
proceedings of the first respondent in G.O.Ms.No. 77, Energy (C-1)
Department dated 22.09.2011, No.11(2)/EGY/404(c)/2011, quash the same
in respect of the petitioner land measuring an extent of 0.19.0 hectares in
S.No.84/1A2 and a land an extent of 0.08.0 hectares in S.No.84/1B1,
Elayanallur Village, Katpadi Taluk, Vellore District.
For Petitioner : Mr.M.Devaraj
(in all WPs)
For R1 to R4 : Mr.A.Selvendran
Special Government Pleader
(in all WPs)
For R5 : Mr.T.Thyagarajan (Senior Counsel)
for V.Kalyanaraman
(in all WPs)
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COMMON ORDER
The writ petition is filed to issue a Writ of Certiorari, calling for
the records relating to the proceedings of the first respondent in
G.O.Ms.No.77, Energy (C-1) Department dated 22.09.2011,
No.11(2)/EGY/404(c)/2011 and to quash the same in respect of the
petitioner's land measuring to an extent of 0.19.0 hectares in S.No.84/1A2
and a land measuring to an extent of 0.08.0 hectares in S.No.84/1B1,
Elayanallur Village, Katpadi Taluk, Vellore District.
2. It is submitted that the Government of India by the
communication dated 20.10.2009 accorded prior approval for
supplementary transmission system associated with Vallur Termal Power
Station for establishment of Tiruvalam 765/400 KV Sub-Station to facilitate
import of power to Southern Region especially to Tamil Nadu. In pursuance
thereto, the Tamil Nadu Electricity Board identified lands measuring to an
extent of 150 acres at Elayanallur Village for establishment of 765/400 KV
Sub-Station by the fifth respondent and 400/230 KV by the Tamil Nadu
Electricity Board. In this regard, on 27.03.2010 the Tamil Nadu Electricity
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Board addressed a letter to the second respondent herein requesting to
acquire the land either by private negotiation or through acquisition.
Accordingly, the fifth respondent vide letter dated 19.05.2010 requested the
second respondent to initiate acquisition proceedings invoking Section 17 of
the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act' for short).
3. It is further submitted that on 28.08.2010, the fourth
respondent conducted a public meeting and taking into consideration the
urgency of the significant project in question, opted to initiate land
acquisition process individually without informing to the Tamil Nadu
Electricity Board. The Commissioner, Land Administration called upon the
second respondent to send proposals for draft notification under Section 4(1)
and draft declaration under Section 6 of the Act.
4. It is further submitted that on 30.08.2011, the first respondent
accorded administrative sanction under Section 17(1) of the Act by issuing
G.O.Ms.No.70, Energy (C-1) Department for acquiring lands measuring to
an extent of 105.92 acres for establishment of 765/400 KV Power Grid
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Station. The first respondent had issued notification under Section 4(1) of
the Act intending to acquire the land belong to the petitioners and other land
invoking urgency provision of Section 17(1) of the Act and dispensing with
the 5-A enquiry under the said Act. The said notification was published in
Tamil Nadu Gazette Extraordinary in G.O.Ms.No.72, Energy (C-1)
Department, dated 07.09.2011. The declaration under Section 6 of the Act
was issued under G.O.(Ms). No.77 Energy (C-1) Department dated
22.09.2011. The declaration under Section 6 of the Act was followed by an
errata issued by the first respondent on 22.02.2012 altering the extent of
land and including the trees, well, pumpset etc., which has been left over in
the earlier notification.
5. It is further submitted that the third respondent had issued
certain notices for determining the compensation. According to the
petitioners, no proper enquiry was conducted in determining the proper
value. However, the third respondent passed an award dated 29.03.2012
thereby determined the compensation. On receipt of the said proceedings of
the third respondent, the petitioners came to understand about the
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acquisition process.
6. Learned counsel for the petitioners submitted that all the
petitioners challenged G.O. Ms. No.77, Energy (C-1) Department, dated
22.09.2011 and declaration under Section 6 of the Act on the ground that as
per Section 17 of the Act, the enquiry under Section 5-A of the Act can be
dispensed in the cases as provided under the said section and Section 17(2)
enumerates the cases in which the urgency provisions can be invoked and
the possession of the land taken immediately and as per sub-section (b)
immediate possession is necessary for library or any educational institution,
for construction of any building for common use of the inhabitants of such
village, or godown for any society or any dwelling house for the poor, or any
irrigation tank drainage channel or well, or any road. The present acquisition
is not for the above enumerated purpose. Therefore, the invocation of
Section 17(4) in the present case is without jurisdiction of the first
respondent. He further submitted that the first respondent failed to publish
the notice under Sections 4(1) and 6 of the Act which are mandatory by law
and the same would prejudice to the petitioners.
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7. Learned Senior Counsel appearing for the fifth respondent
submitted that the entire procedure are duly followed and he has produced
the records to prove the same. In fact, the entire project has been completed
and now 765/400 KV Power Grid Station is functioning in the lands which
are acquired. The notification under Section 4(1) of the Act was published in
the Government Gazette No.309 dated 07.09.2011 and the same was
published in local dailies viz., Malai Murasu and Namadhu MGR on
09.09.2011 and 10.09.2011. Thereafter, the declaration under Section 6 of
the Act was published in the Tamil Nadu Government Gazette No.358 dated
22.09.2011 and the same was published in two vernacular dailies viz., Dhina
Thanthi and Malai Murasu dated 30.10.2011. Thereafter, on 03.11.2011
Form A notice under Section 4(1) of the Act was displayed in the offices of
the National Highways and Revenue offices.
8. He further submitted that the land acquisition proposals
approved by the Principal Secretary and Commissioner of Land
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Administration on 02.02.2012. On 06.03.2012, direction under Section 7 of
the Act was issued to the Land Acquisition Officer and Revenue Divisional
Officer, Vellore. On 08.03.2012, the Public Notice under Section 9(1) of the
Act was issued by the Land Acquisition Officer. Therefore, the Land
Acquisition Officer called upon the land owners including all the petitioners
for enquiry to be held on 26.03.2012 as contemplated Section 9(2) of the
Act. On 12.03.2012, the values of the tree and structure were duly approved
by the Commissioner of Land Administration. On 26.03.2012, all the
petitioners and other land owners appeared for enquiry before the Land
Acquisition Officer. On 29.03.2012, all the petitioners including other land
owners were duly issued letter to collect 80% of the compensation. On
30.03.2012, the compensation award amount has been disbursed to the
respective land owners. Thereafter, the subject property had been taken over
on 25.05.2012 and the Land Acquisition Officer handed over the possession
of lands measuring to an extent of 105.92 acres to the fifth
respondent/corporation. Thereafter, the fifth respondent has taken
possession of the entire extent of the land of the petitioners and now, the
entire project has been completed and it is functioning.
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9. Therefore, all the writ petitions fail and devoid of merits and
they are liable to be dismissed. Accordingly, the Writ Petitions are dismissed.
Consequently, the connected Miscellaneous Petitions are closed. No costs.
23.11.2021
Index:Yes/No
dm
G.K.ILANTHIRAIYAN, J.
These Writ Petitions have been listed before this Court under the
caption “For being mentioned”, at the instance of the learned counsel
appearing for the petitioners.
2. The learned Counsel appearing for the petitioners in all
the Writ Petitions wants to submit some citations and requested that his
submission may be incorporated in the order dated 24.11.2021, passed in
W.P.No.14644 of 2012 etc.
3. In view of the request made by the learned counsel for
the petitioners, the entire order in W.P.No.14644 of 2012 dated 23.11.2021,
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shall read as follows:
“The Writ Petition is filed to issue a Writ of Certiorari, calling for
the records relating to the proceedings of the first respondent in
G.O.Ms.No.77, Energy (C-1) Department dated 22.09.2011,
No.11(2)/EGY/404(c)/2011 and to quash the same in respect of the
petitioners' land measuring to an extent of 0.19.0 hectares in S.No.84/1A2
and a land measuring to an extent of 0.08.0 hectares in S.No.84/1B1,
Elayanallur Village, Katpadi Taluk, Vellore District.
2. The Government of India by the communication dated
20.10.2009 accorded prior approval for supplementary transmission system
associated with Vallur Termal Power Station for establishment of Tiruvalam
765/400 KV Sub-Station to facilitate import of power to Southern Region
especially to Tamil Nadu. In pursuance thereto, the Tamil Nadu Electricity
Board identified lands measuring to an extent of 150 acres at Elayanallur
Village for establishment of 765/400 KV Sub-Station by the fifth respondent
and 400/230 KV by the Tamil Nadu Electricity Board. In this regard, on
27.03.2010 the Tamil Nadu Electricity Board addressed a letter to the
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second respondent herein requesting to acquire the land either by private
negotiation or through acquisition. Accordingly, the fifth respondent vide
letter dated 19.05.2010 requested the second respondent to initiate
acquisition proceedings invoking Section 17 of the Land Acquisition Act,
1894 (hereinafter referred to as 'the Act' for short).
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3. On 28.08.2010, the fourth respondent conducted a
public meeting and taking into consideration the urgency of the significant
project in question, opted to initiate land acquisition process individually
without informing to the Tamil Nadu Electricity Board. The Commissioner,
Land Administration called upon the second respondent to send proposals
for draft notification under Section 4(1) and draft declaration under Section
6 of the Act. On 30.08.2011, the first respondent accorded administrative
sanction under Section 17(1) of the Act by issuing G.O.Ms.No.70, Energy
(C-1) Department for acquiring lands measuring to an extent of 105.92 acres
for establishment of 765/400 KV Power Grid Station. The first respondent
had issued notification under Section 4(1) of the Act intending to acquire the
land belong to the petitioners and other land invoking urgency provision of
Section 17(1) of the Act and dispensing with the 5-A enquiry under the said
Act. The said notification was published in Tamil Nadu Gazette
Extraordinary in G.O.Ms.No.72, Energy (C-1) Department, dated
07.09.2011. The declaration under Section 6 of the Act was issued under
G.O.(Ms). No.77 Energy (C-1) Department dated 22.09.2011. The
declaration under Section 6 of the Act was followed by an errata issued by
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the first respondent on 22.02.2012 altering the extent of land and including
the trees, well, pumpset etc., which has been left over in the earlier
notification.
4. The third respondent had issued certain notices for
determining the compensation. According to the petitioners, no proper
enquiry was conducted in determining the proper value. However, the third
respondent passed an award dated 29.03.2012 thereby determined the
compensation. On receipt of the said proceedings of the third respondent,
the petitioners came to understand about the acquisition proceedings.
5. The learned counsel for the petitioners submitted that all the
petitioners challenged G.O. Ms. No.77, Energy (C-1) Department, dated
22.09.2011 and declaration under Section 6 of the Act on the ground that as
per Section 17 of the Act, the enquiry under Section 5-A of the Act can be
dispensed in the cases as provided under the said section and Section 17(2)
enumerates the cases in which the urgency provisions can be invoked and
the possession of the land taken immediately and as per sub-section (b)
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immediate possession is necessary for library or any educational institution,
for construction of any building for common use of the inhabitants of such
village, or godown for any society or any dwelling house for the poor, or any
irrigation tank drainage channel or well, or any road. The present acquisition
is not for the above enumerated purpose. Therefore, the invocation of
Section 17(4) in the present case is without jurisdiction of the first
respondent. He further submitted that the first respondent failed to publish
the notice under Sections 4(1) and 6 of the Act which are mandatory by law
and the same would prejudice to the petitioners.
5.1. The learned counsel appearing for the petitioners further
submitted that when the provision under Section 17(2) of the Act invoked,
the first respondent must be satisfied that the acquisition of land is very
urgent to invoke the emergency provision. There must be material before the
first respondent to invoke the emergency provision. The requisition has been
made on 19.05.2010 and the administrative sanction accorded on
30.08.2011. Only after one year, the emergency provision was invoked,
followed by the declaration under Section 22.09.2011. Further the
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compensation was determined unilaterally on 23.09.2012. It would clearly
show that the right of the petitioners under Section 5(A) of the Act is
arbitratively deprived and the entire acquisition proceeding is liable to be set
aside.
5.2. He vehemently contended that though emergency
provision was invoked by the first respondent, there was no real and
substantive urgency warranting invocation of urgency clause, much less
urgency warranting dispensing with enquiry under Section 5(A) of the Act.
The dispensing with the enquiry as contemplated under Section 5(A) of the
Act is only directory in nature and the owners of the land may dispense with
enquiry under Section 5(A) of the Act, even as per the provisions.
5.3. In support of his contention, he relied upon the
judgement reported in 2011 (5) SCC 553 in the case of Radhyshyam & ors
Vs. State of Uttar Pradesh & ors., in which the Hon'ble Supreme Court of
India held that the property of a citizen cannot be acquired by the State or its
agencies without complying with the mandate provisions under Sections 4,
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5A and 6 of the Act. A public purpose, however, laudable it because the
same have the effect of depriving the owner of his right to property without
being heard. Only in a case or real urgency, the State can invoke the urgency
provisions and dispense with the requirement of hearing the land owners or
other interested person. The urgency clause can be invoked only for the
purpose of acquisition cannot brook the delay of even a few weeks or
months. Therefore, before excluding the application of Section 5(A) of the
Act, the authority concerned must be fully satisfied that time of few weeks
or months likely to be taken in conducting inquiry under Section 5(A) of the
Act will in all probability, frustrate the public purpose for which the land is
proposed to be acquired. Further held that if planned industrial development
of the district is treated as public purpose within the meaning of Section 4 of
the Act, there was no urgency which could justify the exercise of power by
the State Government under Sections 17(1) and 17(4) of the Act. Therefore,
time required for ensuring compliance with the provisions contained in
Section 5(A) of the Act, cannot by any stretch of imagination, be portrayed
as delay which will frustrate the purpose of acquisition.
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5.4. He also relied upon the judgement reported in 2011 (4)
MLJ 78 in the case of S.Muthuvenkataseshan Vs. State of Tamil Nadu &
ors., in which this Court held that the emergency provision contained in
Section 17 of the Act can be invoked if only the emergency is one of grave.
In the said case, the project was originally proposed in the year 1999,
whereas the notification was issued only in the year 2001 i.e., after two
years. Thus, the Government itself allowed the proposal to be kept pending
for two years. The right to own property, though not a fundamental right, is
now a constitutional right under Article 300A of the Constitution of India
and the same cannot be deprived without following due process of law.
5.5. The learned counsel appearing for the petitioners also
relied upon another judgment reported in 2011 (4) SCC 769 in the case of
Dev Sharan & ors Vs. State of Uttar Pradesh & ors., in which the Hon'ble
Supreme Court of India held that the concept of public purpose on this
broad horizon must also be read into the provisions of emergency power
under Section 17 of the Act, with the consequential dispensation of right of
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hearing under Section 5(A) of the Act. The Courts must examine these
questions very carefully when little Indians lose their small property in the
name of mindless acquisition at the instance of the State.
5.6. He also relied upon the judgment reported in 2012 (12)
SCC 675 in the case of Bharat Sewak Samaj Vs. Lieutenant Governor and
ors., in which the Hon'ble Supreme Court of India held that the authority
must have subjective satisfaction of the need for invoking urgency clause
under Section 17 of the Act keeping in mind the nature of the public
purpose, real urgency that the situated demands and the time facts., i.e.,
whether taking possession of the property can wait for a minimum period
within which the objections could be received from the landowners and the
inquiry under Section 5(A) of the Act could be completed. Therefore, the
learned counsel appearing for the petitioners in all the Writ Petition
submitted that though entire project has been completed and the sub-station
is functioning there on, the entire land acquisition proceedings lapsed and
the respondent ought to have initiated the proceedings afresh and liable to
pay compensation under the new Act.
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6. Per contra, the learned Senior Counsel appearing for the
fifth respondent submitted that the entire procedure are duly followed and he
has also produced the records to prove the same. In fact, the entire project
has been completed and now 765/400 KV Power Grid Station is functioning
in the lands which were acquired. The notification under Section 4(1) of the
Act was published in the Government Gazette No.309 dated 07.09.2011 and
the same was published in local dailies viz., Malai Murasu and Namadhu
MGR on 09.09.2011 and 10.09.2011. Thereafter, the declaration under
Section 6 of the Act was published in the Tamil Nadu Government Gazette
No.358 dated 22.09.2011 and the same was published in two vernacular
dailies viz., Dhina Thanthi and Malai Murasu dated 30.10.2011. Thereafter,
on 03.11.2011 Form A notice under Section 4(1) of the Act was displayed in
the offices of the National Highways and Revenue offices.
6.1. He further submitted that the land acquisition proposals
approved by the Principal Secretary and Commissioner of Land
Administration on 02.02.2012. On 06.03.2012, direction under Section 7 of
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the Act was issued to the Land Acquisition Officer and Revenue Divisional
Officer, Vellore. On 08.03.2012, the Public Notice under Section 9(1) of the
Act was issued by the Land Acquisition Officer. Therefore, the Land
Acquisition Officer called upon the land owners including all the petitioners
for enquiry to be held on 26.03.2012 as contemplated Section 9(2) of the
Act. On 12.03.2012, the values of the tree and structure were duly approved
by the Commissioner of Land Administration. On 26.03.2012, all the
petitioners and other land owners appeared for enquiry before the Land
Acquisition Officer. On 29.03.2012, all the petitioners including other land
owners were duly issued letter to collect 80% of the compensation. On
30.03.2012, the compensation award amount has been disbursed to the
respective land owners. Thereafter, the subject property had been taken over
on 25.05.2012 and the Land Acquisition Officer handed over the possession
of lands measuring to an extent of 105.92 acres to the fifth
respondent/corporation. Thereafter, the fifth respondent has taken
possession of the entire extent of the land of the petitioners and now, the
entire project has been completed and it is functioning.
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7. Heard Mr.Devaraj, learned counsel appearing for the
petitioners, Mr.A.Selvendran, learned Government Pleader appearing for the
respondents 1 to 4 and Mr.T.Thyagarajan, learned Senior Counsel appearing
for the fifth respondent in all the Writ petitions.
8. In order to facilitate import of power to southern region,
especially to Tamil Nadu, the Ministry of Power, Government of India by the
communication dated 20.10.2009 accorded prior approval for
supplementary transmission system associated with Vallur Thermal Power
Station for establishment of Tiruvalam 765/400 kv sub-station. In pursuant
thereto, the Tamil Nadu Electricity Board identified lands to an extent of 150
acres at Elayanallur Village for the establishment of 765/400 KV sub-station
by the fifth respondent and 400/230 KV by the Tamil Nadu Electricity
Board. The Tamil Nadu Electricity Board addressed a letter to the second
respondent herein on 27.03.2010, requesting to acquire the land either by
private negotiation or through acquisition. On 19.05.2010, the fifth
respondent addressed a letter to the second respondent to initiate acquisition
proceedings by invoking Section 17 of the Act.
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9. On 28.08.2010, the fourth respondent convened a
public meeting at Elayanallur Village to appraise the public the importance
of the project. Taking into consideration of the urgency of the project, the
fifth respondent has initiated land acquisition process individually without
reference to the Tamil Nadu Electricity Board. In that regard, on
07.09.2010, the fifth respondent addressed a letter to the second respondent
to invoke urgency clause under Section 17 of the Act, for the land to be
acquired. On 06.12.2010, the Assistant Commissioner of Land Reforms,
Villupuram issued “no objection certificate” on the basis of Form 36
submitted under Section 37 of the Tamil Nadu Reforms (Fixation of Ceiling
on Land) Act, 1961. On 31.12.2010, the proposal has been forwarded by
the second respondent to the first respondent through the Commissioner,
Land Administration. The Revenue Secretary vide his letter dated
10.03.2011, called the Energy Secretary, Commissioner of Land
Administration, Commissioner of Land Reforms and the fifth respondent for
a joint metting with the Chief Secretary, Government of Tamil Nadu
regarding land acquisition for the proposed sub-station. On 17.03.2011, the
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said meeding was convened and thereby called upon the second respondent
to send proposal for draft notification under Section 4(1) of the Act and draft
declaration under Section 6 of the Act.
10. Thereafter, on 30.08.2011, the first respondent accorded
administrative sanction under Section 17(1) of the Act, by G.O.Ms.No.70
Energy (C-1) Department, for acquiring land ad measuring 105.92 acres for
establishment of 765/200 KV Power Grid station to fulfillment of conditions
mentioned therein. The first respondent issue notification under Section 4(1)
of the Act under the urgency provision of Section 17(1) of the Act in
G.O.Ms.No.72 Energy (C-1) Department dated 07.09.2011 and declaration
under 6 of the Act was issued in G.O.Ms.No.77 Energy (C-1) Department,
dated 22.09.2011.
11. Now the entire project has been completed and from
31.03.2014 onwards, 765/400 KV power station is functioning. After
completion of all requirements as contemplated under the Act, on
31.07.2012 the award was passed and the entire compensation award
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amount has been deposited on 23.06.2014 and the land acquisition
proceedings are pending before the Sub Court, Vellore. He further
submitted that the establishment of the sub station to facilitate the power
demand of southern States particularly Tamil Nadu and as such, the
respondents rightly invoked the emergency clause for the establishment of
765/400 KV sub-station, by the fifth respondent and 400/230 KV by the
Tamil Nadu Electricity Board.
12. As stated supra, on 19.05.2010, the first respondent
initiated acquisition proceedings by invoking Section 17 of the Act. On
30.08.2011, the first respondent accorded sanction to acquire the land under
Section 17(1) of the Act. Immediately on 07.09.2011, notification under
Section4(1) of the Act was issued and the same was published in the public
gazette. Therefore, there is absolutely no delay for invoking the provisions
under Section 17(1) of the Act.
13. That apart, the similar project established by invoking
Section 17 of the Act, was challenged before this Court in W.P.No.35069 of
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2012 and this Court by an order dated 02.08.2013, after considering all the
points raised by the learned counsel appearing for the petitioners dismissed
that Writ Petition, and the same was also confirmed by the Hon'ble Division
Bench of this Court in W.A.No.1737 of 2013 dated 07.11.2013. The Hon'ble
Division Bench of this Court held in that case that neither pre-acquisition
delay not post-acquisition delay and invocation of urgency clause requires
decision at various levels by various authorities and considering the said
fact, the period of one year taken to arrive at such a decision cannot be said
to be a delay at all. In the case on hand, the original records produced by the
respondents has substantiate the stand taken by the first respondent. Hence,
the above judgements cited by the learned counsel appearing for the
petitioners do not help the case of the petitioners. Therefore, all the Writ
Petitions fail and devoid of merits and they are liable to be dismissed.
14. Accordingly, all the Writ Petitions are dismissed.
Consequently, the connected Miscellaneous Petitions are closed. There shall
be no order as to costs.
03.12.2021
rts/dm
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G.K.ILANTHIRAIYAN, J.
dm
To
1.The Principal Secretary to Government,
Government of Tamilnadu,
Energy C-1, Department,
Fort St. George,
Chennai - 9.
2.The District Collector,
Vellore District,
Vellore.
3.The Revenue Divisional Officer,
Vellore.
4.The Tahsildar,
Katpadi,
Vellore District.
5.Power Gird Corporation of India Ltd.,
Rep. by its Deputy General Manager,
A.Surendiran,
No.2 (Old No.160) I Lane
Bharathi Nagar, North Usman Road,
T.Nagar, Chennai - 600017.
W.P.No.14644 of 2012 etc. batch
23.11.2021
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