Madras High Court
Rajagopal vs The State Of Tamil Nadu on 3 March, 2022
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W.P. Nos.12212/1994, etc. Batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 03.03.2022
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NOS. 12212, 12462, 12383, 12371, 12459, 12317, 12366, 12382, 12213,
12334, 12402, 12405, 12451, 12458, 12370, 12381, 12434, 12437, 12435,
12600, 12796, 12929, 12493, 12372, 12401, 12495, 12928, 12799, 12315,
12367, 12447, 12368, 12461, 12379, 12385, 12436, 12214, 12380, 12403,
12404, 12438, 12448, 12450, 12750, 12335, 12369, 129384, 12449, 12460,
12596, 12597, 12749, 12930, 13495, 12798, 12926, 13494, 12797, 13493,
16380, 16381, 16382,
17273, 17271, 17275, 17272, 17274, 17700, 20610 & 20611 OF 1994
W.P. NO. 12212 OF 1994
Rajagopal ... Petitioner
- Vs -
1. The State of Tamil Nadu
rep. by its Commissioner &
Secretary, Housing & Urban
Development Dept.
Fort St. George, Madras - 9.
2. The Special Tahsildar
Land Acquisition, Housing Scheme No.III
Coimbatore. ... Respondents
W.P. No.12212 of 1994 filed under Article 226 of the Constitution of India
praying this Court to issue a writ of certiorari calling for the records relating to
G.O. Ms. No.878, Housing & Urban Development Department dated 28.5.1991
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W.P. Nos.12212/1994, etc. Batch
under Section 4 (1) of the Land Acquisition Act and G.O. Ms. No.473, Housing &
Urban Development Department dated 27.7.1992 u/s 6 of the Land Acquisition
Act, quash the same in respect of the lands bearing Survey No.119/2 measuring
to an extent of 21 1/2 cents in Vilankuruchi, North Taluk.
For Petitioners : Mr. V.Sanjeevi
For Respondent : Mr. Silambanan, AAG, assisted by
Dr. R.Gowri for RR-3 in all petitions
Ms. D.Tamilselvi, AGP for RR-1 & 2
COMMON ORDER
The present petitions have questioned the acquisition, sought to be made
by issuance of Notification u/s 4 (1) and the Declaration u/s 6 of the Land
Acquisition Act, 1894 (for short 'the Act').
2. It is the case of the petitioners that various extent of lands in different
survey numbers in Vilankuruchi Village, Coimbatore Taluk, were acquired for the
purpose of Ganapathy Nagar Neighbourhood Scheme. It is the averment of the
petitioners that some of the petitioners were subsequent purchasers. It is the
further averment of the petitioner that neither the petitioners nor their
predecessor-in-title received any notice about the acquisition. It is the case of
the petitioners that the total extent of lands proposed to be acquired for the
scheme was 2186.07 acres and lands in Vilankuruchi Village was acquired to an
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W.P. Nos.12212/1994, etc. Batch
extent of 472.21 acres and 24 awards were passed for the acquisition of the said
lands from 1994 to 2002. Further, the said scheme implemented in the said
Vilankuruchi village covered an extent of 37.85 acres. It is the further averment
of the petitioners that major portion of the lands have not yet been acquired due
to orders passed by this Court and some of the writ petitions have been filed
after passing of the award.
3. It is the further case of the writ petitioners that while the writ petitions
were filed in the year 1994, the earlier Act was repealed and the new Act, viz,
Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 (for short 'New Act') and, therefore, the petitioners
had filed requisite amendment petition, which was also allowed and the prayer
was appropriately amended.
4. When the matter was taken up by this Court earlier, vide order dated
20.10.2017, three questions were framed for consideration, which are as under
:-
a) Whether the requisitioning body, i.e., TNHB ought to
have obtained prior approval for the acquisition?
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W.P. Nos.12212/1994, etc. Batch
b) Whether the period for which the interim order of the
Court is operating should be excluded for the purpose of
computing compensation qua 24 (2) of the Right to Fair
Compensation and Transparency in Land Acquisition
Rehabilitation and Resettlement Act, 2013 (hereinafter
referred to as the 'New Act')?
c) Whether the award amount was remitted within the
prescribed period in the light of applicability of Section 24
(2) of new Act.
5. Though the aforesaid three questions have been framed for
consideration, however, the moot question is only question (a), which
determines whether the other questions needs to be addressed. In that, if the
answer to question (a) is in the affirmative, then this Court has to consider
questions (b) and (c) and if it is otherwise, questions (b) and (c) would have no
relevance.
6. Question (a) relates to the necessity of the requisitioning body, viz., the
Tamil Nadu Housing Board to obtain prior approval for acquisition in terms of
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W.P. Nos.12212/1994, etc. Batch
Section 3 (f) (vi) of the Act. Therefore, it becomes necessary for the respondents
to establish and satisfy this Court that prior approval was granted by the
Government for the acquisition, failing which the whole acquisition proceedings
will fall down like a pack of cards.
7. For better appreciation of the issue, Section 3 (f)(vi) of the Act is quoted
hereunder :-
"3. .....
(f) .............
(vi) the provision of land for carrying out any educational,
housing, health or slum clearance scheme sponsored by
Government or by any authority established by Government for
carrying out any such scheme, or, with the prior approval of the
Appropriate Government, by a local authority or a society
registered under the Societies Registration Act, 1860, or under
any corresponding law for the time being in force in a State, or a
Co-operative society within the meaning of any law relating to
co-operative societies for the time being in force in any State.
* * * * * * * *"
(Emphasis Supplied)
8. Before embarking upon analysing the legal position, it is pertinent to
point out that with regard to the present petitions, relating to prior approval u/s
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W.P. Nos.12212/1994, etc. Batch
3 (f) (vi) of the Act, reference to a Larger Bench was made by a learned single
Judge of this Court and during the deliberations, a categorical admission was
made by the learned Addl. Advocate General that there has been no prior
approval from the Government. But the only point on which the reference was
made by the learned single Judge was that the learned single Judge had
entertained a doubt with regard to two other decisions rendered by coordinate
Benches of this Court, which has held that prior approval is necessary.
9. Learned counsel appearing for the petitioners, vehemently stressed
that the prior approval of the Government, as provided u/s 3 (f)(vi) of the Act, is
mandatory and in the absence of any approval, the acquisition proceedings
would stand vitiated and is liable to be quashed. In this regard, attention of this
Court is drawn to the decision of the Division Bench of this Court in K.Rakkianna
Gounder & Ors. - Vs - The Secretary, Government of Tamil Nadu (2014 (1) CTC
64), wherein it has been held as under :-
"5.6. We are of the view that the decisions relied upon by the
learned Counsels appearing for both sides are not applicable to
the case on hand. There is no difficulty in appreciating the law as
laid down by the Honourable Apex Court in H.M.T. House Building
Co-operative Society v. M. Venkataswamappa, AIR 1995 SC 2253;
and Bangalore City Co-operative Housing Society Ltd. v. State of
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W.P. Nos.12212/1994, etc. Batch
Karnataka, 2012 (2) MLJ 401 (SC), that prior to the issuance of
Notification, there has to be an approval of the Scheme by the
Government concerned. As stated above, when such an approval
is very much available, the decisions relied upon by the learned
Counsel appearing for the Appellants have no Application to the
case on hand."
10. In Devinder Singh & Ors. - Vs - State of Pubjab & Ors. (2008 (1) SCC
728), the Hon'ble Apex Court had occasion to consider the construction that
ought to be given to expropriatory statute and in that context, the Apex Court
held as under :-
"42. It is furthermore trite that the Land Acquisition Act is an
expropriatory legislation. (See Hindustan Petroleum Corpn. Ltd. v.
Darius Shapur Chenai [(2005) 7 SCC 627] and Indore Vikas
Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. [(2007) 8
SCC 705 : (2007) 8 Scale 110] )
43. Expropriatory legislation, as is well known, must be strictly
construed. When the properties of a citizen are being
compulsorily acquired by a State in exercise of its power of
eminent domain, the essential ingredients thereof, namely,
existence of a public purpose and payment of compensation are
principal requisites therefor. In the case of acquisition of land for
a private company, existence of a public purpose being not a
requisite criterion, other statutory requirements call for strict
compliance, being imperative in character."
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W.P. Nos.12212/1994, etc. Batch
11. The aforesaid decision in Devinder Singh's case (supra) was also
considered by the Division Bench in Rakkianna's case (supra) and it was held as
under :-
"5.8. We are also not convinced with the arguments of the
learned Additional Advocate General that prior approval is not
mandatory since it is settled law as held in Devinder
Singh v. State of Punjab, 2008 (1) SCC 728, Land Acquisition Act,
1894, is a expropriatory statute and is a provision regarding
acquisition are mandatory and also the said issue is already
covered by the Judgment of the Honourable Apex Court referred
supra. Accordingly, the Writ Appeal fails and the same is
dismissed. No costs. Consequently connected Miscellaneous
Petitions are also dismissed."
12. From the aforecited decision, it is amply evident that the
requisitioning body has to obtain prior approval of the Government, which is
mandatory, prior to issuance of Section 4 (1) Notification and in the absence of
any approval by the Government, the whole acquisition proceedings, initiated by
the acquisitioning body would stand vitiated.
13. In view of the settled position of law, it now becomes necessary for
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W.P. Nos.12212/1994, etc. Batch
this Court to find out whether the mandatory approval from the Government, as
provided u/s 3 (f) (vi) of the Act has been obtained or not. Though a statement
has been made across the Bar by the learned Addl. Advocate General in the
earlier round of hearing in which reference has been made that no prior
approval has been granted by the Government, however, this Court deemed it fit
to call for the records and peruse it to satisfy itself about the said stand taken by
the learned Addl. Advocate General. A perusal of the entire records as also the
files produced by the respondents reveal that approval, as mandated u/s 3 (f) (vi)
of the Act has not been given by the Government. Learned Addl. Advocate
General is not able to point out any material in and by which approval has been
granted by the Government. In the absence of compliance with the mandatory
condition, viz., Section 3 (f) (vi), this Court is of the considered view that the
acquisition proceedings is vitiated and, therefore, the present batch of petitions
deserve to be allowed.
14. For the reasons aforesaid, these writ petitions are allowed and the
acquisition proceedings are quashed insofar as the petitioners are concerned.
However, this Court makes it clear that in case of any other petitions, which have
already been dismissed or any other order having been passed, the benefit of
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W.P. Nos.12212/1994, etc. Batch
this order shall not enure to the petitioners therein and the said petitions shall
not be reopened by virtue of the order passed in the present petitions. There
shall be no order as to costs.
03.03.2022
Index : Yes/No
Internet : Yes/No
GLN
To
1. The Commissioner &
Secretary, Housing & Urban
Development Dept.
Government of Tamil Nadu
Fort St. George, Madras - 9.
2. The Special Tahsildar
Land Acquisition, Housing Scheme No.III
Coimbatore.
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W.P. Nos.12212/1994, etc. Batch
M.DHANDAPANI, J.
GLN
W.P. NOS.12212 OF 1994, etc.
Batch
03.03.2022
https://www.mhc.tn.gov.in/judis
