Madras High Court
Jaffer Mohamed Sait vs The Government Of Tamil Nadu on 5 January, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
WP.No.12345/2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2024
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.12345 of 2020
& WMP.Nos.15191 & 15192 of 2020
1.Jaffer Mohamed Sait
2.Abdul Rahman CassimSait @ Rafiq Sait
3.Fakeer Mohamed Sait @ Junaid Ali Sait
4.Zubair Ahmed Sait
5.Abdullah Ahmed Sait @ Suhail Sait
6.Mohammed Younus Sait @ Abrar Sait ...Petitioners
vs.
1.The Government of Tamil Nadu
Rep. by Principal Secretary to Government,
Animal Husbandry, Dairying
and Fisheries (MP-1) Department,
Secretariat, For St.George,
Chennai – 600 009.
2.The Land Acquisition Officer cum Sub Collector,
Coonoor, Ootacamund,
Nilgiris District.
3.The Nilgiris District Co-Operative Milk
Producers Union Ltd.,
Rep. by its General Manager,
Coonoor Road, Udhagamandalam,
Nilgiris-643 001. ... Respondents
1/15
https://www.mhc.tn.gov.in/judis
WP.No.12345/2020
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, to call for the records
in proceedings in Letter No.8684/MP.I(2)/2019-2, dated 09.09.2019, on
the file of 1st respondent and quash the same as illegal, incompetent and
without jurisdiction and direct the 1st Respondent to re-convey the
unutilized portion of the land situated in S.No.1106/4A3, 1106/4B1,
1106/4C2 measuring an extent of 5 acres in Ootacamund Town, Nilgiris
District.
For Petitioners : Mr.V.Raghavachari,
Senior Counsel
for Mrs.V.Srimathi
For R1 & R2 : Mr.G.Ameedias,
Government Advocate
For R3 : Mr.G.Muniratnam
ORDER
The writ on hand has been instituted questioning the validity of
the letter dated 09.09.2019 issued by the Principal Secretary to
Government, Animal Husbandry, Dairying and Fisheries Department.
2.The facts in nutshell for consideration would be that the
subject property originally belonged to the writ petitioners were acquired
for public purposes on 15.12.1980. The process of acquisition was
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completed in the year 1981 and the compensation was also paid to the
erstwhile land owners during the year 1981. A reference was made
subsequently for enhancement of compensation and thereafter, the
litigations were continuing for a considerable length of time. However, the
fact remains that the acquisition process completed in the year 1981 by
passing an award and settling the compensation as determined by the Land
Acquisition Officer.
3.The land acquired by the Government was allotted under the
Hill Area Development Scheme to the third respondent/Nilgiris District Co-
operative Milk Producers Union for establishing milk processing plants at
the hill area.
4.The petitioners, now after a lapse of about 40 years filed the
present writ petition in the year 2020 questioning the validity of the
reference order passed in the year 2019. The modus of opening the lapsed
claim in the present case is that the writ petitioner earlier filed
WP.No.4832 of 2014 seeking the relief to direct the Government to de-
notify the land used by the third respondent measuring over 5 acres. This
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Court passed an order on 05.02.2019 directing the Government to consider
the representations submitted by the writ petitioner dated 04.10.2012 and
pass an order within a period of four months. In compliance with the
orders of this Court, the present impugned order dated 09.09.2020 has
been issued. This is how the cause of action was restored after a lapse of
many years. The practice of restoring lapsed cause of action at no
circumstances be appreciated. A mere direction to dispose of the
representation would do no service to the cause of justice. In such
circumstances, the order of rejection, if passed by the authorities are
challenged by way of fresh writ petition, as if the cause arose at the first
time.
5.The learned Senior Counsel Mr.V.Raghavachari, for
Mr.V.Srimathi, learned counsel appearing on behalf of the petitioner
would submit that the appeal suit filed by the land acquisition officer,
Udhagamandalam in A.S.388 of 1984, the Division Bench of this Court in
its Judgment dated 11.08.1988 made an observation that the third
respondent in the present writ petitioner filed an affidavit that they are not
utilizing the acquired land to an extent of 4 to 5 acres and the said fact was
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recorded by the Division Bench. When the third respondent has admitted
the fact that they have not utilized a portion of the acquired land, the said
portion is to be re-conveyed to the writ petitioner. In support of the said
contention, the learned Senior Counsel would rely on the Judgment of the
Hon'ble Supreme Court in the case of Royal Orchid Hotels Limited and
another Vs. G.Jayarama Reddy and others [2011 10 SCC 608], wherein
the Supreme Court made the following observations;
“36.The next question which merits examination is whether the
High Court was justified in directing restoration of land to
Respondent 1. In Behroze Ramyar Batha v.Land Acquisition
Officer, the Division Bench of the High Court categorically held
that the exercise undertaken for the acquisition of land was
vitiated due to fraud. The Division Bench was also of the view
that the acquisition cannot be valid in part and invalid in other
parts, but did not nullify all the transfers on the premise that
other writ petitions and a writ appeal involving challenge to the
acquisition proceedings were pending. In Annaiah v. State of
Karnataka the same Division Bench specifically adverted to the
issue of diversification of purpose and held that where the
landowners are deprived of their land under the cover of public
purpose and there is diversification of land for a private
purpose, it amounts to fraudulent exercise of the power of
eminent domain.
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37.The pleadings and documents filed by the parties in these
cases clearly show that the Corporation had made a false
projection to the State Government that land was needed for
execution of tourism-related projects. In the meeting of officers
held on 13-1-1987 i.e. After almost four years of the issue of
declaration under Section 6, the Managing Director of the
Corporation candidly admitted that the Corporation did not
have the requisite finances to pay for the acquisition of land and
that Dayananda Pai, who had already entered into agreements
with some of the landowners for purchase of land, was prepared
to provide funds subject to certain conditions including transfer
of 12 acres 34 guntas land to him for house building project.
After 8 months, the Corporation passed a resolution for transfer
of over 12 acres land to Dayananda Pai. The Corporation also
transferred two other parcels of land in favour of Bangalore
International Centre and M/s Universal Resorts Limited. These
transactions reveal the true design of the officers of the
Corporation, who first succeeded in persuading the State
Government to acquire a huge chunk of land for a public
purpose and then transferred a major portion of the acquired
land to a private individual and corporate entities by citing poor
financial health of the Corporation as the cause for doing so.
38.The courts have repeatedly held that in exercise of its power
of eminent domain, the State can compulsorily acquire land of
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the private persons but this proposition cannot be overstretched
to legitimise a patently illegal and fraudulent exercise
undertaken for depriving the landowners of their constitutional
right to property with a view to favour private persons. It needs
no emphasis that if land is to be acquired for a company, the
State Government and the company is bound to comply with the
mandate of the provisions contained in Part VII of the Act.
Therefore, the Corporation did not have the jurisdiction to
transfer the land acquired for a public purpose to the companies
and thereby allow them to bypass the provisions of Part VII. The
diversification of the purpose for which land was acquired
under Section 4(1) read with Section 6 clearly amounted to a
fraud on the power of eminent domain. This is precisely what the
High Court has held in the judgment under appeal and we do
not find any valid ground to interfere with the same more so
because in Annaiah v.State of Karnataka the High Court had
quashed the notifications issued under Section 4(1) and 6 in
their entirety and that judgment has become final.”
6.As per the above Judgment, in the present case, the acquisition
was made fraudulently and the acquired lands were not utilized for the
purpose for which it was acquired and therefore, the petitioner is entitled
for the relief of re-conveyance. The petitioner could able to receive
compensation after a long fight and considering the facts, the Writ Petition
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is to be allowed.
7.The learned counsel for the third respondent
Mr.G.Muniratnam would oppose the said contention by stating that the
petitioners have selectively relied on the observations made by the Division
Bench in the appeal suit instituted in A.S.No.388 of 1984 dated
11.08.1988. In the very said Judgment, the Division Bench further said
that 'such filing of the affidavit at this stage cannot be said to be having
any impact in arriving at a compensation'.
8.Paragraph No.38 of the same Judgment has been referred by
the third respondent, which reads as under;
“38.As regards the additional affidavit filed on behalf of the
Union through the Managing Director, stating that the Union
faced with severe financial burden has reconsidered the
requirement and decided to forego 4 to 5 acres of land south of
the buildings which has been erected and the portion is
bifurcated by a small street, we wish to state that if the Union
feels in such manner to forego the said extent the same may be
intimated to the District Collector for being utilised for any other
public purpose and thereby the Union may not suffer in the event
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of enhancement of compensation after the final disposal of the
reference”
9.Regarding the non-utilization of the acquired land, the learned
counsel for the third respondent Mr.G.Muniratnam would state that the
usage of the land has been categorically stated in the counter affidavit filed
by the third respondent.
10.The lands were acquired in the year 1980 and 43 years
lapsed. The third respondent/The Nilgiris District Co-operative Milk
Producers Union Ltd., has developed its activities in many forms for the
purpose of catering the needs of the public in that locality. Various projects
are already implemented and certain proposed projects are yet to be
implemented. The third respondent is supplying milk to the entire locality
and further transporting milk to other neighboring Districts.
11.In this context, the third respondent states that the acquired
lands are essential for the purpose of running the milk union. There is no
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land which can be spelt, served or considered excess. The land which is
not covered by the buildings and maintained as vacant land consists
mainly of water sources required to run the Dairy plant and land required
for the Hydraulic loading at the rate of 35 KL per Hectare for the disposal
of treated effluent as per Environmental law and Pollution Act. At present,
third repondent Union is handling Hydraulic Loading at the rate of 50 KL
which requires 1/43 Hectare land and a buffer vacant land to be allowed
around the Dairy Plant as per the Factory Act. The Dairy plant is in
operation for the last 31 years and the Nilgiris District Milk Producers
Federation Limited is not in a position to spare even an inch of land.
12.In the present case, the procedures as contemplated under the
land acquisition Act was scrupulously followed. The Acquisition completed
in the year 1981. Compensation was settled in favour of the erstwhile
owners and admittedly, they have withdrawn the amount. Subsequently, a
reference was made for enhancement and those factors are irrelevant as far
as the present writ petition, wherein, the petitioner is seeking the relief of
re-conveyance of the acquired land.
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13.Regarding the allegation of the petitioner that the portion of
the acquired land was rented out for parking purposes, the third
respondent has stated that there is no violation as alleged by the petitoners.
The third respondent is utilizing the entire land of 11.32 acres as detailed
in the impugned order. During summer vacation, to clear traffic due to
season, the District Collector/the Government gave direction to the 3 rd
respondent to allow the vehicles for parking, since there is no water due to
rain during summer vacation. The Government directed the 3rd Respondent
to use a small portion of the area to dump the materials to complete the
PWD work by the High-ways Contractor till the completion of the work.
Therefore, the 3rd Respondent is not using the land apart from the purpose
for which it was acquired and it is used as per the directions of the
Government. The land is being used for the said purpose of said
acquisition. The parking of vehicle and rented out to a Highway contractor
for a sum of Rs.50,000/- per month as per the direction of the Government.
The work of the contractor was over and the 3 rd respondent is now using
the entire land for the purpose for which it was acquired.
14.Regarding the Judgment relied on by the petitioner in the case
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of Royal Orchid Hotels Limited sited supra, the notification issued under
Section 4(1) and 6, in their entirety was challenged before the writ Court.
The Supreme Court found that a fraud being committed in land acquisition
proceedings in that particular case. Considering those facts, the acquisition
proceedings were quashed. However, in the present case, the acquisition
proceedings were completed in all respects by following the procedures
and the acquisition therefore, became valid and the facts in the present case
would have no application with reference to the facts considered by the
Supreme Court in the case of Royal Orchid Hotels Limited. Since the
facts are distinguishable, the said Judgment is of no avail to the petitioner
for the purpose of seeking re-conveyance of the acquired land.
15.Beyond all these, 43 years lapsed and the petitioner made an
attempt to restore the cause of action by filing a writ petition in the year
2020 and pursuant to the order of direction to consider the representation
the impugned order has been passed and therefore, the said order cannot
be construed as the original cause for the purpose of further adjudication of
the issues. The impugned order is a cause which was created at the
instance of the petitioner by filing a writ petition and obtaining a direction
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to consider the representation and the original cause arose in the year
1980, when the land acquisition proceedings were initiated became lapsed
on account of completion of the proceedings and possession was taken by
settling the compensation due to the erstwhile owners.
16.In view of the above facts and circumstances, the petitioner
has not established any acceptable ground for the purpose of considering
the relief and consequently, the Writ Petition stands dismissed. No costs.
Consequently, the connected miscellaneous petitions are closed.
05.01.2024
Tsg
Index : Yes/No
Internet:Yes/No
Speaking Order/Non-speaking Order
https://www.mhc.tn.gov.in/judis
S.M.SUBRAMANIAM , J.
Tsg
To
1.The Government of Tamil Nadu
Rep. by Principal Secretary to Government,
Animal Husbandry, Dairying
and Fisheries (MP-1) Department,
Secretariat, For St.George,
Chennai – 600 009.
2.The Land Acquisition Officer cum Sub Collector,
Coonoor, Ootacamund,
Nilgiris District.
3.The Nilgiris District Co-Operative Milk
Producers Union Ltd.,
Rep. by its General Manager,
Coonoor Road, Udhagamandalam,
Nilgiris-643 001.
https://www.mhc.tn.gov.in/judis
05.01.2024
https://www.mhc.tn.gov.in/judis
