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M.K. Chengalroya Chetti Vs. the Special Deputy Collector for Land Acquisition, Town Planning, Collector's Office, First Line Beach, Madras and Anr. (24.07.1952 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 517 of 1952
Judge
Reported inAIR1953Mad348; (1952)IIMLJ863
ActsMadras Town Planning Act, 1921 - Sections 14, 14(5) and 14(6)
AppellantM.K. Chengalroya Chetti
RespondentThe Special Deputy Collector for Land Acquisition, Town Planning, Collector's Office, First Line Bea
Appellant AdvocateM. Natesan, Adv.
Respondent AdvocateV.P. Sarathy, Adv. ;for Govt. Pleader and ;John and ;Row, Advs.
DispositionApplication dismissed
Cases ReferredCouncil v. Narayanaswami Chettiar
Excerpt:
.....for the corporation rightly complained that these allegations should have been made in the affidavit itself to enable him to traverse them in his counter. 'again i do not think that, the legislature, when under the calcutta improvement trust act, it conferred powers of acquisition of land with certain well defined safeguards, ever intended that the trust should abrogate those safeguards and acquire land in this manner through the medium of the corporation for the purpose of street widening and street improvements......ft. belonging to the petitioner, more particularly described in the plan filed in this case. the land acquisition officer was proceeding with the acquisition proceedings. at this stage this application was filed for the aforesaid reliefs.2. learned counsel for the petitioner raised' before me the following points;1. the corporation did not give him personal notice under rule 36 of the rules made under the town planning act. 2. the statements prepared and annexed to the notification under sections 13 and 14 are inaccurate in material particulars. 3. the defects in the statements indicate-that the corporation acted arbitrarily and did not apply its mind in respect of the property sought to be acquired. 3. it will be convenient at this stage to-read the relevant provisions of the madras.....
Judgment:
ORDER

Subba Rao, J.

1. This is an application under Article 226 of the Constitution of India, for issuing a writ of prohibition restraining the 1st respondent from proceeding with the enquiry under the Land Acquisition Act in respect of R. S. No. 3762/7 in Mylapore Western section area Town Planning scheme. The petitioner is the owner of a bungalow bearing D. No. 79 Mow-bray's Road, Alwarpet, Madras. He purchased the site on 4-11-1936 from one C. V. Raja- ' gopalachariar. After having obtained the sanction of the Corporation, he put up the bunga-low in accordance with the plan sanctioned by the Corporation. On 14-8-1934, the Provincial Government required the Council of the Corporation, Madras, to prepare, publish and submit for their sanction a draft scheme in respect of Mylapore Western section area. Town Planning scheme on or before 1st July 1935. From time to time, the time was extended and finally on 14-10-1946 it was extended to 30-11-1946. Pursuant to the directions given by the Government, the Corporation issued notices to the owners of lands asking them to attend a meeting of the owners of lands and buildings in the area affected by the proposed scheme. On 18-3-1942 a notice was served on one T. Ekambaram for the petitioner. The survey number in respect of which the said notice was given was stated to be 3762/3. The meeting so convened was held on 23-3-1942. A draft scheme formulated at that meeting was published under rule 41 of the Town Planning Rules in the Gazette dated 10-11-1942 and it was also published in the-Hindu and Swadesamitram dated 4-11-1942. After the time prescribed for objections expired, the draft scheme was submitted to Government on 19-8-1946. The Government sanctioned the scheme. The notification regarding the acquisition of the lands reserved for acquisition was published in the Fort St. George Gazette dated 26-7-1949 under Section 14(5) of the Town Planning Act. Under the notification,, the Corporation proposed to acquire an extent of 4 grounds 1787 sq. ft. belonging to the petitioner, more particularly described in the plan filed in this case. The Land Acquisition Officer was proceeding with the acquisition proceedings. At this stage this application was filed for the aforesaid reliefs.

2. Learned counsel for the petitioner raised' before me the following points;

1. The Corporation did not give him personal notice under Rule 36 of the rules made under the Town Planning Act.

2. The statements prepared and annexed to the notification under Sections 13 and 14 are inaccurate in material particulars.

3. The defects in the statements indicate-that the Corporation acted arbitrarily and did not apply its mind in respect of the property sought to be acquired.

3. It will be convenient at this stage to-read the relevant provisions of the Madras Town Planning Act (Madras Act VII of 1921). Section 12: Notwithstanding anything contained in Sections 9 to 11, the Provincial Government may, in respect of any municipality, after making such inquiry as they may deem necessary, by notification in the official gazette, require the council, before a fixed date, to prepare, publish and submit for their sanction a draft scheme as respects any land in regard to which a town planning scheme may be made. Rule 36: (1) The Municipal Council shall convene meetings of owners of lands and buildings in the area affected by the proposed scheme;

(2) Notice of every such meeting shall, not less than ten days before the date of meeting (a) be published on the notice board of the Municipal Office, and (b) subject to the provisions of Sub-rule (3) be sent in the manner prescribed therein to all persons known or believed, to have rights in any land or building in the area included in the proposed scheme and to other persons known or believed to be affected by the scheme.

Rule 50 : The rules contained in Part B, except rules 32 to 34, shall, as far as may be, apply to schemes required to be prepared under Section 12. Section 13 : Every draft scheme shall contain the following particulars-- (a) a plan showing the lines of existing and proposed streets; (b) the ownership of all lands and buildings in the area to which the scheme relates ......

Section 14(1) : If within sixty days from the date of the publication of a draft scheme any person affected by such scheme communicates in writing any objection or suggestion relating thereto, the Council shall consider such objection or suggestion and may modify the scheme as it thinks fit.

(2) The scheme as passed or adopted by the Council together with all written objections and suggestions shall thereupon be submitted to the Provincial Government for sanction and the fact of such submission shall be published in the prescribed manner.

(3) The Provincial Government, may, after considering the objections and suggestions, if any; and making such enquiry as they think fit, sanction the scheme with or without modifications, or may refuse to sanction the scheme or may return the scheme to the Council for reconsideration.

(5) The sanction of the Provincial Government to a scheme under Sub-section (3) shall be published by the notification in the official gazette and such notification shall state at what place and time the scheme will be open to -the inspection of the public.

(6) A notification published under sub-s. (5) shall be conclusive evidence that the scheme has been duly made and sanctioned. The scheme shall have effect from the date of publication of such notification, and the execution of the scheme shall be commenced forthwith.

Section 33: Immoveable property required for 'the purposes of a town-planning scheme shall be deemed to be land needed for a public purpose, within the meaning of the Land Acquisition Act, 1894, and may be acquired:

(a) under the said Act, or (b) under the said Act as modified in the manner hereinafter provided in this chapter.

Section 34: In cases falling under clause (b) of Section 33, a notification under Section 14 shall, not-withstanding anything contained in the Land Acquisition Act, 1894, operate in respect of any land for the purposes of the scheme as a declaration under S. G of the said Act, and no further declaration shall be necessary, but it shall not be incumbent on the Provincial Government, or officer authorised in that behalf, to take immediate steps for the acquisition of such land. Provided that if the land is not acquired within three years from the date of the notification, it shall cease to have effect as a declaration under Section 6 of the Land Acquisition Act, 1894.

Section 35 (2): In such cases, the Collector and the Court shall, in determining the amount of compensation to be awarded for the land acquired, take into consideration:

(a) the market value of the land at the date of publication of the notification under Section 10 or Section 12, as the case may be: A gist of the aforesaid provisions may be stated thus: The Government asks the Council to prepare a scheme for a particular area. The Council convenes a meeting of all the landowners interested in the proposed scheme for the purpose of formulating one in consultation with the interests of parties. The notice of such a meeting shall be personally served on the owners of the property. The draft scheme and the final scheme will be published to enable the interested parties to raise objections. After all these formalities have been complied with and after every opportunity has been given to all the interested parties to put forward their objections or make their suggestions, the scheme finally evolved will be sent to the Government for sanction. After it is sanctioned by the Government it comes into force. If under the scheme any property will have to be acquired, the said property will be acquired through the machinery of the Land Acquisition Act but no further notice under Section 6 is necessary. A declaration made under Section 14 of the Town Planning Act shall be deemed to be a declaration made under Section 6 of the Land Acquisition Act. The Land Acquisition Officer will assess the market value of the property as on the date when the notification under Section 12 was made. It will therefore be seen that the Town Planning Act which was enacted for the improvement of town provides opportunity at every step for the interested parties to raise their objections and make their suggestions. But if the proceedings drag on for years, which the Act perhaps did not contemplate, the unfortunate result will flow-as in this case, namely, that though the property was sought to be acquired recently, the market value of the land on the date of the publication under Section 12, which may have been made many years ago, will be given to the owner.

4. Learned counsel for the petitioner argues that before the Corporation can acquire the property, they must establish that the various steps laid down for evolving the final scheme have been strictly and literally complied with. Learned counsel says that the provisions of Rule 36 have been flagrantly violated in two respects:

1. The notice alleged to have been given under that rule is less than ten days before the date of the meeting, and

2. No notice was given to his client. It is true that only five days' notice was given for the meeting. In regard to the second question, the petitioner in his affidavit stated that no personal notice was given to him. The Corporation in its counter affidavit asserted that such a notice was given. For the first time in the reply affidavit the petitioner alleged that though a notice was served upon one Ekambaram who was his maternal uncle's son living in' his house, he was only a minor and therefore the said service must be deemed to be not personal service. Learned counsel appearing for the Corporation rightly complained that these allegations should have been made in the affidavit itself to enable him to traverse them in his counter. But on the material placed before me, it is not possible to hold whether Ekambaram is the maternal uncle's son of the petitioner and he was a minor on the date when the notice was served on him. Learned counsel for the Corporation contended that the notification published under Section 14 (5) is conclusive evidence that the scheme has been duly made and sanctioned and it is not open to the petitioner to allege and establish that it has not been duly made and sanctioned. He relies in support of his argument on Section 14 (6) of the Act which has already been extracted above. Learned counsel for the petitioner cited before me a long 'catena' of decisions in support of his contention that not-withstanding the express provisions of Section 14 (6) of the Act, he is not precluded from proving that the various steps provided for under the Act before the notification was published have not been strictly complied with.

'Trustees for the Improvement of Calcutta v. Chandra Kanta Ghosh', 47 Cal 500 strongly relied upon by the petitioner does not, in my view, really touch the question to be decided in this case. There the Judicial Committee held on the facts that the Board acted ultra vires. The section which their Lordships were construing stated that the publication of a notification is conclusive evidence that the scheme has been duly framed and sanctioned. At page 506 they observed, 'This provision does not affect the right of the respondent to institute a suit to have it declared that the Board in framing the scheme acted ultra vires, or that the scheme as sanctioned does not authorise the appellants to acquire by compulsion the land in question.' At page 508 they proceed to say: 'To have included land within the area of the scheme, not because it was wanted for purposes of the Act, but in order to exact an . exemption fee from the owner, would, in the opinion of their Lordships, have been a misuse of the powers conferred upon the Board.' The only point therefore decided in that case was, when the Board acted ultra vires of their powers, it is open to the affected party to allege and establish that fact. It has no bearing on the question before me.

In -- 'Radhaswami Satsang Sabha v. Tara-chand : AIR1939All557 , the question was whether the declaration under Section 6(3) of the Act was conclusive of the fact that the land was needed for public purposes or for a company. The declaration was that it was required for a public purpose, whereas in fact it was admitted that, it was required for a company. Therefore the learned Judges held that it was open to the aggrieved party to establish that fact as the declaration purported to be for one purpose was really intended to be for a different purpose. In -- 'Municipal Corporation, Bombay v. Ranchoddas', AIR 1925 Bom 538, the local Government sanctioned an improvement scheme and under that Act a notification was conclusive evidence that the scheme had been duly framed and sanctioned. The learned Judges held that the fact that the said notification was conclusive evidence did not pre-chide the aggrieved party from filing a suit for a declaration that the Board in framing that scheme acted ultra vires. Learned counsel strongly relied upon -- 'Manickchand Mahata v. Corporation of Calcutta', 48 Cal 916 in support Of his contention that the principles laid down in the aforesaid decision will also apply to a case where there was only defect in the steps to be pursued before the notification was issued. There was a notification under Section 6, Land Acquisition Act, declaring that a particular property was required for the Corporation but in fact the Corporation was acquiring that land to the benefit of another body, the Calcutta Improvement Trust. Greaves J. said:

'But on broad grounds I do not think that it was ever the policy of the Calcutta Municipal Act that the special powers given to the Corporation for acquiring land for certain purposes named in the Act were to be used to enable another body to acquire land through the medium of the Corporation, however estimable the purpose.' Later on the learned Judge said: 'Again I do not think that, the Legislature, when under the Calcutta Improvement Trust Act, it conferred powers of acquisition of land with certain well defined safeguards, ever intended that the Trust should abrogate those safeguards and acquire land in this manner through the medium of the Corporation for the purpose of street widening and street improvements.' It is therefore clear that the Corporation had no power to acquire land for the Trust and therefore it was acting ultra vires its powers. In those circumstances it is obvious that the notification could not preclude the plaintiff from questioning the validity of the acquisition. It is true in the course of the judgment there are some observations which appear to be rather wide, but having regard to the circumstances that decision must be confined only to the facts of that case.

5. The aforesaid discussion of the case law does not really support the contention of the petitioner. In all the cases cited, the party was allowed to go behind the notification as the authority concerned acted beyond its powers. But in this case under Section 14(6) a notification, published under Sub-section (5) shall be conclusive evidence that the scheme has been duly made and sanctioned. Personal service and giving the prescribed time are steps in the framing of the scheme. The words of the section are clear and unambiguous and I must therefore hold that when a question arises whether proper notices were given or not, the notification published under Section 14(5) will be conclusive evidence of that fact. It is not necessary for me to give my final opinion on the question whether the said sub-section could preclude a party from questioning the validity of the acquisition in cases where the Corporation ignored the provisions of the Act altogether. But that cannot be said here as the Corporation purported to issue the notice, though the dispute is whether the time given is less than the prescribed time and whether the notice so given was, as a matter of fact, duly effected. These are certainly concluded by Section 14(6) of the Act.

6. Mr. Natesan then relied upon rule 38 which reads as follows :

'The following statements shall also be prepared:

(i) a statement in form No. 7 showing the ownership and extent of lands included in the scheme;

(ii) a statement in form No. 3 showing (a) the proposed new street; and (b) the proposed widenings of existing streets; (iii) a statement in form No. 10 showing the lands proposed to be acquired; and (iv) a statement in form No. 10 showing the lands proposed to be reserved under clause (k) of Section 4.'

He contended that the statements prepared and annexed to the notification contained many defects in regard to the name and other particulars. It is true that there are some mistakes but there cannot be any dispute about the identity of the land. The survey number was specifically given and the name of the previous owner was given. If really notice had been served on him and if the notification was duly published, it is very difficult to say that these small mistakes would affect the validity of the notification. From the fact that these mistakes were allowed to creep in, I cannot hold that the Corporation acted arbitrarily in issuing the notification.

7. It was then contended that though the notification under Section 12 was issued in the year 1934, as a matter of fact it was finally extended in the year 1946 and therefore the notification under Section 12 must be deemed to have been published when the final extension was made, and in support of his argument he relied upon the observations of Ramesam J. in the --'Secretary of State for India in Council v. Narayanaswami Chettiar', 63 Mad LJ 9.62. The learned Judge observed : 'As the sections are worded the Act contemplates that the Council has to take action within the time mentioned by the Government, but as I said an extension can always be granted by a further notification. If so, the date of the further notification will be the date to be adopted under Section 35(2) (a).'

8. Cornish J. took a different view. Thisquestion really does not fall to be consideredin this writ. It is for the Land AcquisitionOfficer to consider for the purpose of givingthe compensation whether the original date ofthe notification under Section 12 or the date whenthe time was extended should be the crucialdate for the quantum of compensation will depend upon this question. In the result the application fails and is dismissed with costs.


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