Madras High Court
The Secretary To Government vs M/S V.G.P.Housing (P) Ltd on 11 July, 2023
W.A.No.3696 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.07.2023
CORAM :
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
and
THE HONOURABLE MR.JUSTICE P. B.BALAJI
W.A.No.3696 of 2019 and
CMP No.23512 of 2019
1. The Secretary to Government,
Industries Department,
Fort St. George, Chennai 600 009.
2. The District Collector, Kancheepuram District,
Kancheepuram. . ... Appellants
Vs.
1.M/s V.G.P.Housing (P) Ltd.,
Rep. by its Director, Mr.V.G.P.Rajadas,
at VGP square, Saidapet, Chennai 600 015.
2. The Managing Director, SIPCOT,
19-A, Rukmani Lakshmipathy Road,
Egmore, Chennai 600 008 (given up) ... Respondents
Prayer: Writ Appeal filed under Section 15 of Letters Patent to set aside the
order passed by this Court in W.P.No.2055 of 2010 dated 10.07.2012
Page 1 of 12
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W.A.No.3696 of 2019
For Appellant : Mr.A.Selvendran, Spl.Govt.Pleader
For Respondents : Mr.K.Balamurali
for Mr.Sivakumar & Suresh for R1
Mrs.Sundharshana Sundar,
Standing Counsel for R2
JUDGEMENT
(Judgment of the Court was delivered by D.KRISHNAKUMAR, J.)
This Intra Court Appeal has been filed, challenging the order passed
by this Court in W.P.No.2055 of 2010 dated 10.07.2012 by the
Government.
2. Before the Writ Court, W.P.No.2055 and 2056 of 2010 had been
filed challenging the notification No.3/2009 dated 27.10.2009 and
notification No.2/2009 dated 09.10.2009 issued by the District Collector,
Kancheepuram District respectively, in terms of Section 3(2) of the Tamil
Nadu Acquisition of land for Industrial Purposes Act,1997. The main
contention of the writ petitioner was that, the Government has to hear and
pass the orders, as per the mandate of Section 3(3) and Section 3(1) of the
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W.A.No.3696 of 2019
Act and the hearing of objections before passing such an order cannot be
delegated to the District Collector. The above writ petitions were disposed
of by this Court, by directing the government to consider the objection of
the petitioner and after giving opportunity of hearing to the petitioner and to
take a decision on merits, in accordane with law. Now, challenging the
order in W.P.No.2055/2010, the Government has preferred the present intra
court appeal.
3. The learned Special Government Pleader appearing for the
appellants has placed the order passed by a Division Bench of this Court in
W.A.No.3631 of 2019 dated 26.08.2022 and submitted that, in the above
said writ appeal, which is similar in nature to the present appeal, the order
of the writ court was set aside and the appeal was allowed. Therefore, on
the same line, this writ appeal may also to be allowed. He has also placed
the above said judgment before this Court.
4. A perusal of the judgment passed in the above writ appeal shows
that, the Division Bench of this Court has dealt with the issue by relying
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W.A.No.3696 of 2019
upon the decision of the Hon'ble Supreme Court as well the Division Bench
of this Court and it is useful to extract the relevant portion of the judgment
in W.A.No.3631 of 2019 dated 26.08.2022, which is as follows.
5.It is brought to our notice that in an intra-court appeal against
W.P.No.2056 of 2010 in W.A.No.1710 of 2017, a Division Bench of
this Court by its order dated 01.02.2018 has set aside the order of the
learned Single Judge. The Division Bench after considering Section 23A
of the Tamil Nadu Acquisition of Land for Industrial Purposes Act,
1997 and the Government Notification dated 02.09.2005, whereby the
Government had delegated its functions and under the said Act to be
exercised by the District Collectors of the district concern, has held as
follows:-
17.Section 23-A of the Tamil Nadu Acquisition of Land for
Industrial Purposes Act permits delegation of powers by the
Government. The Collector, as a delegatee is empowered to
conduct hearing of objections in the place of the Government. The
fact that Rule 6 contains aprovision for hearing of objections by
the Government would not nullify Section 23-A of the Act giving
the Government the power of delegation.Rule 6 is subject to
Section 23-A of the Act. Wherever the name Government is shown
in Rule 6, it has to be read as District Collector, inview of Section
23-A of the Act and the notification in G.O.Ms.No.513Revenue
dated 2 September 2005. We therefore reject the contention
takenby the learned counsel for the first respondent on the
strength of Rule 6 ofthe Tamil Nadu Acquisition of Land for
Industrial Purposes Rules.
18.The power of judicial review conferred on the constitutional
court is not to legislate. The Court can only interpret the law and
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W.A.No.3696 of 2019
cannot enter the field of legislation. The Court must interpret the
provision enacted by the legislature in a particular manner,
taking into account the intention of the legislature. It is not for the
Court to say that the Government was not correct in delegating
certain power to the executive without there being any challenge
to the provision permitting such delegation.
19.We make the position clear that the District Collectors are
empowered to conduct enquiry after issuing Notification under
subsection(2) of Section 3 of the Industrial Purposes Act and to
forward the same with recommendation to the Government for
issuance of notification under Sub-Section (1) of Section 3 of the
Industrial Purposes Act. We hold that there is no legal
requirement mandating that the enquiry should be conducted only
by the Government. We are of the view that the order passed by
the learned single judge on that aspect is liable to be set aside
following the judgement in W.A.No 1710 of 2017.
6.The learned counsel appearing on behalf of the first respondent
has not disputed this legal position. Hence, we are of the view that the
order passed by the learned Single Judge on that aspect is liable to be set
aside following the judgment in W.A.No.1710 of 2017.
7.At this juncture the learned counsel for the first respondent
raised an issue that as per Rule 6 of the rules framed under the Tamil
Nadu Acquisition of Land for Industrial Purposes Act, 1997, the
objections made by the landowners have to be sent to the requisitioning
body and their remarks have to be obtained. Such remarks have to be
given to the landowners for them to effectively participate in the
hearing. He had also relied upon a judgement reported in (2006) 4 CTC
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W.A.No.3696 of 2019
8.For better appreciation, Rule 6 of the Tamil Nadu Acquisitions
of Land for Industrial Purposes Rules, 2001 is extracted hereunder:
6.Hearing of objections by the Government.—(a) If a statement of
objections is filed by a person who is not interested in the Land, it
shall be summarily rejected.
(b) If any objections are received from a person interested in the
land, within the time prescribed in rule 3 or 4, the Government
shall fix a date for hearing the objections and give notice thereof
to the objector or as well as to the department or company
requiring the land. Copies of the objections shall also be
forwarded to such department or company. The Department or
company may file on or before the date fixed by the Government, a
statement by way of answer to the objections and may alsodepute
a representative to attend the enquiry.
(c)On the date fixed for enquiry or any other date to which the
enquiry may be adjourned by the Government, the Government
shall hear the objector, or a person authorised by him in this
behalf, or his pleader and the representative, if any, of the
department or company and record any evidence that may be
produced by both in support of the objections and in support of the
need for acquiring the land.
9.The said rule presupposes that on receipt of the objections
from the landowners, the same shall be forwarded to the requisitioning
body who may on or before the date of hearing submit its remarks. The
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W.A.No.3696 of 2019
said rule does not provide that such remarks has to be forwarded/given
to the landowners. Further the rule does not mandate the requisitioning
body to submit its remarks. The words used are clear that the
requisitioning body may submit their remarks, that means that even if
the requisitioning body does not submit its remarks, the hearing may be
conducted and proceded further.
10.The judgement relied upon by the counsel for the first
respondent reported in (2006) 4 CTC 609 relates to interpretation of the
provisions of the Tamil Nadu Acquisition of Land for Harijan Welfare
Schemes Act, 1978. Under the provisions of the said Act, a hearing has
to be conducted by the Collector or his Authorised Representative. In
case, the Authorised Representative had conducted the enquiry then that
Authority has to submit the Report to the Collector for him to pass
appropriate orders. The facts of the case in the Full Bench judgment
would show that the Authorised Officer has conducted the enquiry and
has submitted its Report. It was held that the report had to be given to
the landowner for them to make any further representation before the
Collector passes any order. The reason assigned by the Full Bench was
that the Authorised Representative may not have fully considered the
objections submitted by the landowners, and in such circumstances the
landowners can highlight such objections that were not considered by
the Authorised Representative.
11.In this case, the objections of the landowners are before the
Authority, their remarks if any submitted cannot alone be the basis for
considering the objections of the landowners. It is the specific case of
the appellants that even though the first respondent has submitted his
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W.A.No.3696 of 2019
objections, which has been duly considered before issuing the
Notification under Section 3(1), the first respondent had not attended the
hearing conducted on 11-06-2010. Hence, the decision of the Full Bench
reported in 2006 (4) CTC 609 cannot be applied to the case of the first
respondent.
12.The counsel for the first respondent further relied upon the
following judgment to drive home his points:
A Division Bench of this Court has held in 1999-1-LW-519
(N.D.Ramanujam vs. Collector of Madras & Others) that the
land owners are entitled to the report of the requisitioning body
for they have to submit their responses to the same before the
Section 5A enquiry under Act 1894 is conducted. Again referring
to another judgment of the Hon'ble Apex Court argued that the
Hon’ble Supreme Court has held in 2005-7- Supreme-297
(Hindustan Petroleum Corpn. Ltd. vs. Darius Shapur Chenai &
Ors.) that there should be application of mind by the Government
wherein it has been found that there has been no application of
mind by the Government and that they were party to the
proceeding did not controvert the issue nor have they filed any
independent appeal. But the above cited judgments do not support
the case of the first respondent as it is not the case of the first
respondent that there was no application of mind by the
Government before issuing the notification under Section 3(1) of
Act 1978.
The second issue raised in this appeal whether the remarks of the
requisitioning body shall be given to the landowners has been answered
by a Full Bench Judgment in 2006-4-MLJ-1460 (M/s.Sharp Tools and
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W.A.No.3696 of 2019
etc. vs. State of T.N. And Anr.etc).
A Full Bench of this Court has interpreted Section 5A of Act
1894 and after detail analysis has held as follows:
“12.As could be seen, we have elaborately considered the
relevant provisions and the case laws, and dealt with
various aspects very broadly in view of the complexity
involved in the issue. Now, let us sum up the principles
standing as answer to the question referred:
(I) Objections to the acquisition are to be submitted by the
persons interested in the lands within 30 days from the
date of publication of the Notification as provided by sub-
section (1) of Section 5-A of the Act.
(II) The 30 days' period is to be reckoned from the last
mode of publication as contemplated under Section 4(1) of
the Act.
(III) In all cases where objections are filed within 30 days
as provided under Section 5-A(1); hearing the objectors
and Department/Company and further enquiry are
mandatory.
(IV) The Collector shall have to fix the date of hearing the
objections. He has to give notice in Form-B to the
Objector as well as to the Department. The Department or
Company may file a statement by way of answer to the
objections before the date fixed by the Collector. The
Department may also depute their Representative to
attend the enquiry.
(V) If objections are not filed within the time, but the
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W.A.No.3696 of 2019
person interested/land owner appears before the Collector
pursuant to the Notice in Form-B and makes any objection
orally, it is incumbent on the part of the Collector to hear
the objector, however, conducting further enquiry is not
obligatory but it is only a discretion of the Collector. To
put it clear, ‘personal hearing’ is mandatory and ‘further
enquiry’ is discretionary depending upon the submission
of objections within 30 days of the last mode of the
publication.
(VI) Rule 4(b) is mandatory and to be followed essentially.
In terms of Rule 4(b), Form-B is only a Notice to the
objectors and the Department to appear for the hearing
and it is not a notice for filing the objections. As observed
earlier, since the present Form-B is neither in conformity
with Rule 4(b) nor Section 5-A(1) of the Act, the State
Government is directed to take immediate steps to amend
Form-B so as to bring it in conformity with Rule 4(b) of
the Rules to avoid misunderstanding on the part of the
persons interested in the lands proposed to be acquired.”
The procedure laid down above by the Full Bench does not contemplate
the remarks of the requisitioning body to be given to the land owner.
Hence the procedure as defined by the Full Bench has impliedly
overruled the Division Bench of this Court stated supra viz., 1994-1-
LW-519. Therefore, we are of the considered view that the Writ Appeal
deserves to be allowed and the order made in W.P.No.8806 of 2012
dated 23-01-2013 is liable to be set aside, hence, the writ petition is
dismissed.
13.In view of the above reasons, the Writ Appeal is allowed. No costs.
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W.A.No.3696 of 2019
Consequently, connected miscellaneous petition is closed."
5. Therefore, in the light of the above said decision, this writ appeal is
allowed and the order passed by the writ court in W.P.No.2055/2010 dated
10.07.2012 is set aside. No costs. Consequently, connected miscellaneous
petition is closed.
(D.K.K.J.) (P.B.B.J.)
11.07.2023
Internet: Yes/No
Index : Yes/No
mst
To
1. The Secretary to Government,
Industries Department, Fort St. George, Chennai 600 009.
2. The District Collector, Kancheepuram District,
Kancheepuram. .
3. The Managing Director, SIPCOT,
19-A, Rukmani Lakshmipathy Road,
Egmore, Chennai 600 008
https://www.mhc.tn.gov.in/judis
W.A.No.3696 of 2019
D.KRISHNAKUMAR, J.
and
P. B.BALAJI, J.
mst
W.A.No.3696 of 2019
11.07.2023
https://www.mhc.tn.gov.in/judis
