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Sree Vengeeswarar Alagarperumal Devasthanam, by Its Hereditary Trustee, Etc. Vs. the State of Tamil Nadu by Its Secy., Housing and Urban Development Dept. and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1984)2MLJ427
AppellantSree Vengeeswarar Alagarperumal Devasthanam, by Its Hereditary Trustee, Etc.
RespondentThe State of Tamil Nadu by Its Secy., Housing and Urban Development Dept. and anr.
Cases ReferredRadhey Sham v. State of Haryana
Excerpt:
- orders. mohan, j.1. the lands of the petitioners herein were notified for acquisition under the land acquisition act, hereinafter referred to as the act, along with other lands by the special deputy collector for land acquisition, neighbourhood schemes, as required by the chairman, tamil nadu housing board, in connection with the development of the area as 'kodambakkam-pudur neighbourhood', as early as in 1963. the draft notification under section 4(1) was published on 8-5-1983. the notice under section 9(3) was issued on 7-9-1964 and the statement of claim was filed by the petitioners on 7-10-1964. sri vengeeswarar devasthanam, one of the owners, preferred w.p. no. 2365 of 1965 concerning an extent of 1.87 acres. the challenge to_ acquisition was on the ground that this extent formed.....
Judgment:
ORDER

S. Mohan, J.

1. The lands of the petitioners herein were notified for acquisition under the Land Acquisition Act, hereinafter referred to as the Act, along with other lands by the Special Deputy Collector for Land Acquisition, Neighbourhood Schemes, as required by the Chairman, Tamil Nadu Housing Board, in connection with the development of the area as 'Kodambakkam-Pudur Neighbourhood', as early as in 1963. The draft notification under Section 4(1) was published on 8-5-1983. The notice under Section 9(3) was issued on 7-9-1964 and the statement of claim was filed by the petitioners on 7-10-1964. Sri Vengeeswarar Devasthanam, one of the owners, preferred W.P. No. 2365 of 1965 concerning an extent of 1.87 acres. The challenge to_ acquisition was on the ground that this extent formed part of the 'Prakaram' of the temple. That writ petition was allowed on 10-4-1968. Thereafter, one K.R.P. Haran filed W.P. No. 2383 of 1970 stating that in spite of Seven years having lapsed, the award in respect of his lands had not been passed and, therefore, he prayed for a mandamus to expedite the passing of the award. It was represented to this Court that the Special Deputy Collector (Land Acquisition) Neighbourhood Schemes, was prepared to proceed further in the matter which he could not do on account of the writ petition pending in this Court. This Court, accepting the undertaking given by the Special Deputy Collector, ordered that the matter might be disposed of as expeditiously as possible. This was on 6-10-1971. As a follow-up action, the Special Deputy Collector addressed to the Executive Engineer, P.W.D., South Presidency Division, Madras, for valuation of the structures 'standing in S. No. 37/65 in file No.M2/24429/64 dt. 27-11-1971, and several reminders were sent to him. Though eleven years elapsed after the undertaking given to Court, the valuation of the structures had not been made nor was any report received from the said Executive Engineer. During the award enquiry, the said Haran claimed severance compensation on the ground that the main building standing in the land left out from acquisition proceedings, would be rendered useless if the structures in S. No. 37/7 were acquired, inasmuch as the sanitary facilities attached to the main building would be severed by it. He claimed a huge amount of Rs. 1,80,000/- as severance compensation. The matter was referred to the Chairman, Tamil Nadu Housing Board for his remarks. The Chairman, after detailed examination, agreed to acquire the portion of the land measuring 0.09 acres covered by the main building also. Accordingly, the left out portion was subsequently notified for acquisition as S. No. 37/81 and acquired in Award No. 4/81 dated 2/4/1981.

2. On abolition of the post of the Special Deputy Collector (Neighbourhood Schemes) the file was transferred to the Special Deputy Collector, Tamil Nadu Housing Board. In the meantime, the Highways Department, Corporation of Madras, etc., required certain lands falling in Madras and Chingleput Districts for developmental activities under Madras Urban Development Project Schemes to be implemented under World Bank Aid. It was found that if the lands required by these agencies are to be acquired by utilising the available staff with the Special Deputy Collector, Tamil Nadu Housing Board, and Collector, it will not be possible to have the lands at the right time. Hence, a Land Acquisition Cell in the M.M.D.A., was created to deal with such cases of acquisition with the approval of the Government in G.O. Ms. No. 1251, Housing and Urban Development Dept., dt. 15-7-1979. Accordingly, the post of the Special Tahsildar (LA) MMDA., was created in October, 1979 and the files relating to acquisition of lands under MUDP., schemes were transferred to the Special Tahsildar (LA) MMDA. The land under reference is one such case transferred from the Special Deputy Collector, TNHB., to the Special Tahsildar (LA) MMDA., as the Highways Department proposed to form an Inner Ring Road to connect it with the Arcot Road in Kodambakkam. The Award No. 4/81 dt. 2-4-1981 relates to one of the awards passed by the Special Tahsildar (LA) MMDA., after taking over charge of the files, from the Special Deputy Collector (LA), TNHB.

3. Since the award in respect of the land bearing S. No. 37/65 measuring 0.081/2 acres was not passed even after 11 years from the date of disposal of the Writ Petition No. 2383/70, the said Haran again filed W.P. Nos. 2556 and 2557 of 1981 and obtained stay restraining the Special Tahsildar (LA) MMDA., from taking any further action in respect of the above-said land. Thereafter, I am informed, by private negotiations his lands were taken over. It is at this stage, the writ petitions have come to be filed for certiorari to quash the Section 4(1) Notification as well as the declaration under Section 6 made on 8-5-1963and 26-8-1964 respectively.

4. The one and only ground urged by Mr. G.M. Nathan, learned Counsel for the Petitioners, is that the proceedings are clearly vitiated by reason of an abominable delay of twenty years. In support of the same, reliance is placed on the decisions in P . Appalamurthy v. State : AIR1981AP278 , and R a d h e y Sham v. State of Haryana, (F.B.).

5. The learned Government Pleader submits that the delay had happened as stated in the file owing to the constitution of a Land Acquisition Cell in the Madras Metropolitan Development Area. That took some time. Apart from that, there were two other writ petitions and, therefore, this is a case in which the delay has been properly explained.

6. The facts I have quoted, are culled out only from the file. I am greatly astonished to find the nonchalant attitude evinced by the Executive Engineer, P.W.D., South Presidency Division, Madras. The file itself categorically states that the valuation report was called for as early as on 27-11-1971. Though several reminders were issued to him, he had remained impervious to these reminders. One is rather pained to note that the rights of the citizens should be dealt with in this cavalier fashion. In short, all that I can say will be nothing could be more irresponsible than this. Earlier itself, the said Haran was obliged to move this Court by way of mandamus in W.P. No. 2383 of 1970, which was allowed on 6-10-1971. At least then, the Special Deputy Collector (Neighbourhood Schemes) having undertaken before this Court, he should have been eager to fulfil his obligation in view of the undertaking. If he has not been alive to his official responsibility, what else am I to characterise this attitude excepting to say it is one of supine callousness? Be that so. Then again, the constitution of M.M.D.A., has nothing to do with expediting the award. There might have been alterations of the scheme but they need not hold up the proceedings and keep the citizens' right in suspense. That is precisely what has happened. It may not be out of context to note that the very same Haran was obliged , to move this Court by way of two other writ petitions, W.P. Nos. 2556 and 2557 of 1981 for the same relief. Even then, if things did not improve, are the citizens to keep silent and bemoan their lot or are they to remain for long. I should consider this bureaucratic attitude, after having used the powerful weapon of eminent domain under the Land Acquisition Act which is expropriatory in character, as something which has to be criticised outright. Here is a case where the Section 4(1) Notification was published as early as on 8-5-1963. Twenty long years have rolled by. If the award is to be passed, here again, what is it that the petitioners would get by way of compensation? Undoubtedly, the market value as on the date of Section 4(1) Notification. Certainly, that will be making a mockery of the rights of the citizens because the valuation as in 1963 could hardly be the compensation on today, after twenty years. This is, besides, the value of the rupee itself having gone down. Therefore, this is nothing but gross injustice to a citizen. Having reached this conclusion, the point to be posed is, would the delay in making the award vitiate the notification under Section 4(1). The matter is no longer res integra. The judgment of the Andhra Pradesh High Court reported in P. Appalamurthy v. State : AIR1981AP278 , clearly holds that if there is unreasonable delay in making the award, that would vitiate the Section 4(1) notification itself. The delay in that case was not so abominable as in this case, but three years passed after the declaration under Section 6 and five more years elapsed before the award was passed. Under these circumstances, the learned Judge held as follows:

The delay in approaching the writ Court is not by itself fatal, since there is no law of limitation obliging a person to approach the Court within a particular time. Laches is one of the considerations which must weigh with the Court in exercise of its discretionary power under Art. 226 of the Constitution of India. In the instant case Writ petition was filed three days earlier to the passing of the award. Held, petitioners could not be held guilty of delay and laches.

In the Full Bench judgment of the Punjab and Haryana High Court in Radhey Sham v. State of Haryana, , t h e learned Judges put the matter eloquently:

Long unexplained procrastination, either by itself and in any case coupled with other factors clearly tends to prove the lack of bona fides in the exercise of the power of acquisition. If it can be established beyond cavil that the real motivation behind the acquisition was not any specific public purpose and its expeditious execution but was a mere ruse to peg down the prices by an issuance of notification under Section 4 and thus holding the citizens to ransom for years at the whim and caprice of the State to finalise the acquisition proceedings when it chooses (if at all it is so done) is clearly a factor for establishing the colourable exercise of power. It must, therefore, be held that unexplained inordinate delay is certainly a starkly relevant factor if not a conclusive one for determining the colourable exercise of power or otherwise in the context of proceedings under the Act.

After so observing, the judgment proceeds to consider the issue as follows:

Having held as above, one may now revert back to the main issue of the unexplained inordinate delay in the finalization of the acquisition proceedings. It has already been observed that this is a starkly relevant factor for determining whether the exercise of power is colourable or otherwise. However, in its practical application the question boils down to the fact whether the delay, if any, is either unexplained or is factually or statuorily justifiable. On a closer analysis, delay in this context may be placed in three categories for clarity's sake:

(i) betwixt the issuance of the notification under Section 4 and that under Section 6;

(ii) betwixt the date of the notification under Section 6 and the issuance of notices under Section 9 to the claimants; and (iii) betwixt the date of the notice under Section 9 till the rendering of the Award by the Collector.

In the instant case, no doubt there has not been any delay between the Section 4(1) notification and the declaration under Section 6 or even the issuance of Section 9 notice. It is only the third of the categories abovementioned which concerns us in this case. That is dealt with in Paras 24 and 25 of the Judgment by the Full Bench as under:

Coming now to the category (iii), the main- stay of the arguments on behalf of the State and the private respondents was that any delay after the issuance of notices under Section 9 is qualitatively different from the delay prior thereto. In substance an ingenious analogy was sought to be raised that proceedings after notice under Section 9 were in the nature of execution of procedural proceedings which cannot in any way affect, what was called the decretal or the substantive proceedings of acquisition prior thereto. Counsel submitted that whilst delay in the proceedings subsequent to notice under Section 9 may merit a mandamus or a direction for expeditious disposal the same is not relevant to, nor can be made a basis for nullifying the acquisition proceedings themselves. In sum, the stand of the respondents was that no amount of consequential delay after the issuance of notice under Section 9 is either relevant or germane to the validity of the 'notifications , under Sections 4 and 6.

The argument aforesaid does credit to the ingenuity of the learned Counsel and in fairness one must notice that it was presented with plausibility and ability by Mr. J.K. Sibal. However, a deeper analysis would show that, in essence, the stand is untenable if not wholly fallacious. I am unable to see any basic or qualitative difference betwixt proceedings under the Act up to the stage of issuing of notices under Section 9 and thereafter. Indeed, a look at Part II of the Act in which Sections 4 to 18 are contained, seems to indicate that all these provisions are only components of one integral whole. No artificial or finical line of distinction can be drawn with regard to proceedings up to Section 6 or to Section 9 and the provisions that follow thereafter. Right up to the proceedings culminating in the rendering of the Award by the Collector, the procedure prescribed by the Act is one integrated whole which cannot, or in any case should not, be artifically compartmentalized. I am, therefore, of the view that inordinate delays even after the issuance of notice under Section 9 are equally relevant and fit for consideration in determining the basic issue of the colourable exercise of power.

7. Adopting the reasoning of the Full Bench, it is seen in this case that there is an unexplained inordinate delay, which tends to hold the rights of the citizens, at ransom, whose properties are sought to be acquired. They are denied the compensation in spite of reasonable time. The prices being pegged down to the Section 4(1) notification such compensations if not paid within a reasonable time, they would be sharp and pointed pieces of evidence to establish the lack of bona fides for the exercise of power. Judicial notice can be taken and indeed has to be taken, of a continued and inexorable up trend in the prices of real estate. Consequently, if there exists no explanation at all for the inordinate delay in finalising the land acquisition proceedings and thereby concretise the so-called public purpose, the inference inevitably arises that no immediate public purpose existed or was in sight which could be put in practical shape. If that be so, it follows that the exercise of the power of eminent domain was a colourable attempt to freeze prices forthwith, for an acquisition years later when they may well be double or treble of the existing prices. For a Welfare State to do so at the cost of the citizen, would thus be something which would be a fraud on the power conferred by the Statute.

8. In view of the above discussion, it follows that the land acquisition proceedings will have to be quashed and they are accordingly quashed. Rule made absolute. The petitioners will be entitled to costs at Rs. 250/- each.


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