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Chelliah Konar Vs. the State of Tamil Nadu by the Special Land Acquisition Tahsildar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1972)2MLJ208
AppellantChelliah Konar
RespondentThe State of Tamil Nadu by the Special Land Acquisition Tahsildar and anr.
Cases ReferredMohd. Habibullah v. Special Deputy Collector
Excerpt:
- .....and some other lands in madakulam village, madurai taluk, werfe notified under section 4(1) of the land acquisition act, and the notification was published in the fort st. george gazette on 14th december, 1962, invoking the urgency provisions and by dispensing with the enquiry under section 5-a. the. draft declaration under section 6 was published on 9th may, 1962. there was an erratum to the declaration, and the same was published on nth december, 1963'. out of an extent of 4.45 acres declared for acquisition, awards for an extent of 4.45 acres were passed in the years 1964 and 1965. there remained only an extent of n cents in r.s. no. 2/6b. a portion of that land belonged to one ayisha bibi. she made a representation to the government to reduce the width of the road so far as her land.....
Judgment:
ORDER

K.S. Palaniswamy, J.

1. For the purpose of laying a scheme road under the Madurai District, South-west Extension, Part III Town 'Planning Scheme, R.S. No. 2/6-B and some other lands in Madakulam Village, Madurai Taluk, werfe notified under Section 4(1) of the Land Acquisition Act, and the notification was published in the Fort St. George Gazette on 14th December, 1962, invoking the urgency provisions and by dispensing with the enquiry under Section 5-A. The. draft declaration under Section 6 was published on 9th May, 1962. There was an erratum to the declaration, and the same was published on nth December, 1963'. Out of an extent of 4.45 acres declared for acquisition, awards for an extent of 4.45 acres were passed in the years 1964 and 1965. There remained only an extent of n cents in R.S. No. 2/6B. A portion of that land belonged to one Ayisha Bibi. She made a representation to the Government to reduce the width of the road so far as her land was concerned. The Government acceded to that request by order dated 15th December, 1966, and as a consequence, the width of the road was reduced from 33 feet to 30 feet. Ayisha Bibi filed W.P. No. 3408 of 1967, and the same was dismissed on 15th October, 1969, Award enquiry notice was issued to the petitioner and he acknowledged the notice in May, 1969. As he did not turn up, another notice was issued to him and the same was received by him and he participated in the enquiry and filed objections. Ultimately, an award was passed on 23rd February, 19 70, for the acquisition-of 1,080 square feet belonging to the petitioner. Notice under Section 12(2) Was issued to the petitioner asking him to receive the compensation amount. He received the notice on 24th February, 1970. He filed this writ petition on 2nd March, 1970, challenging the validity of the acquisition proceedings.

2. Mr. Krishna Ayyar, Counsel appearing for the petitioner, put forward the following contentions:

(i) As the acquisition is made for the purpose of laying a scheme road under the scheme framed under the Madras Town Planning Act, 1920, the declaration made under Section 6 of the Land Acquisition Act, in the year 1962, ceased to have effect under the Land Acquisition Act, on the expiry of three years from the date of the notification as the acquisition proceedings were not completed before the expiry of three years;

(ii) The proposed road is a blind road for which a width of 30 feet is not required. The petitioner had Voluntarily given a portion of his land for the purpose of the road and it is mala fide and inequitable to acquire a part of the building portion belonging to the petitioner. If a portion is acquired, the remaining portion of the building would become uninhabitable;

(iii) The scheme was not properly registered. As such no acquisition can be made for the purpose of the scheme;

(iv) The building of the petitioner was put up after obtaining the necessary sanction from the Commissioner of the Madurai Municipality. A portion of the building cannot be sought to be demolished for the purpose of laying the road inasmuch as the building was put up with the sanction of the competent authority. The Government are, therefore, estopped from acquiring the building portion; and lastly;

(v) There was no ground to invoke the urgency provisions of the Land Acquisition Act for the purpose of dispensing with the enquiry under Section 5-A of that Act as the award itself was passed only after an interval of about 8 years after the date of the notification under Section 4(1) of the Land Acquisition Act.

3. On behalf of the respondents, the validity of the foregoing contentions is controverted and it is contended that the acquisition was not made under the Town Planning Act, but was made under the Land Acquisition Act, that the delay was due to circumstances beyond the control of the Acquisition officer and that the petitioner is not entitled to question the Validity of the proceedings on account of the inordinate delay and laches on his part in invoking the writ jurisdiction of this Court.

4. Mr. Krishna Ayyar, appearing for the petitioner, contended that inasmuch as the road was intended to be laid for a scheme framed under the Town Planning Act, the provisions of the Town Planning Act, should be looked into to find out whether the proposed acquisition is Valid or not. He contended, relying upon the proviso to Section 34 of the Town Planning Act, that inasmuch as the land has not been acquired within three years from the date of the notification, the notification shall cease to have effect as a declaration under Section 6 of the Land Acquisition Act. To understand the argument, it is necessary to refer to Section 33 of the Town Planning Act, which says that immovable property required for the purpose 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 under the Land Acquisition Act or under that Act as modified in the manner provided in Chapter VII of the Town Planning Act. Section 34 inter alia states that in cases of acquisition under the Land Acquisition Act, as modified by the Town Planning Act, a notification under Section 14 shall operate in respect of any land for the purposes of the scheme as a declaration under Section 6 of the said Act and that no further declaration shall be necessary, but it shall not be incumbent on the State Government or officer authorised in that behalf, to take immediate steps for the acquisition of such land. This Section is subject to the proviso 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. The argument of Mr. Krishna Ayyar, was that inasmuch as the: acquisition Was not completed within three years, the entire acquisition proceeding is vitiated. There is an apparent fallacy underlying this argument. The proviso to Section 34. could be attracted only if the acquisition is made under the Land Acquisition Act, as modified by the Town Planning Act. That is not the position in the instant case. In this case, the acquisition has been, made only under the Land Acquisition Act without any modification by the Town Planning Act. In other, words, the case falls under Clause (a) of' Section 33 and therefore Section 34 is not applicable to this case. Strong reliance was placed by Mr. Krishna Ayyar upon an unreported decision of Somayya, J., in Bommanna Chettiar v. Rangaswamy Ckettiar Second Appeals Nos. 874 and 930 of 1944 in which the Validity of certain acquisition proceedings made under the Land Acquisition Act, as modified by the Town Planning Act arose for consideration. The learned Judge found that the acquisition not having been completed within three years from the date of he notification, the notification ceased to-have effect as a declaration under Section 6. That decision is not applicable to the facts of the instant case in which the acquisition has been made only under the Land Acquisition Act and not under the said Act as modified by the Town-Planning Act.

5. Mr. Krishna Ayyar was Vehement in his argument that the proposed road' is a blind road and that, therefore, it is; most inequitable on the part of the Government to acquire a portion of the house property belonging to the petitioner. He contended that as a dutiful citizen, the petitioner gave free of cost small extent of his land for the purpose of the road and that the Government, after having accepted the gift, is disentitled from acquiring a portion of the building belonging to the petitioner. His further argument was that if the portion of the land proposed to be acquired is taken away, the remaining portion of the petitioner's building would become uninhabitable. None of these contentions has any substance. It is wrong to say that the proposed road is a blind road. On either side of it there are roads. No doubt, it does not run to the entire length and breadth of the scheme area as seen from the scheme plan. But that docs not mean that the road is a blind road. Even if it is a blind road, it is not for this Court to consider the question whether the land of the petitioner is necessary or not, for the purpose of the road. It is beyond the province of this Court to consider whether the acquisition is necessary or not in spite of the Government having accepted the gift of a portion of the land belonging to the petitioner. It is not the case of the petitioner that the acquisition is motivated by mala fides. In the absence of such a plea and proof, the acquisition proceeding is not liable to be struck down merely because after the acquisition the remaining portion of the building would become less convenient.,

6. The argument that certain modifications made in the scheme were not registered as required under the Town Planning Act, and that consequently the acquisition is invalid, is not tenable. The validity of the scheme is not the point that arises for consideration in this case.

7. Equally untenable is the contention that the Government are estopped from initiating acquisition proceedings for the reason that the building of the petitioner Was put up after obtaining the prior approval of the Commissioner of the Municipality. If public need requires the Government to take action under the Land Acquisition Act, the fact that the building was put up with the prior approval of the authority under the relevant statute, cannot be a bar for taking action. Public good overrides the individual benefit and the Government cannot be restrained from taking action in public interest, even though the action may effect injuriously the interest of an individual. I find nothing in law to prevent the Government from initiating acquisition proceedings.

8. The last contention urged on behalf of the petitioner is that the invoking of the urgency provisions for the purpose of dispensing with the enquiry under Section 5-A of the Land Acquisition Act is mala fide. The argument Was that even though the notification under Section 4(1) of that Act, was made even as early as 1962, the award was passed only in February, 1970, and that, therefore, having regard to the long delay in passing the award, it should be held that the dispensation of the enquiry under Section 5-A was totally uncalled for. In order to explain the delay in passing the award it is contended on behalf of the respondents that after the issue of the erratum to the declaration under Section 6 in December, 1963, enquiries were held and five awards were passed in respect of different portions of the land comprised in the notification, four awards in the year 1964, and one award in the year 1965. It is further pointed out that what remained was an extent of 11 cents out of the extent of 4-56 acres declared for the acquisition. Out of this extent, a part belonged to one Ayisha Bibi, who approached the Government for reduction of the width of the road from 33 feet to 30 feet and her request was complied with in the year 1966. It is further contended that the said Ayisha bibi filed a writ petition against that acquisition and the same was dismissed in 1969. It is, therefore, contended that thereafter the award enquiry was taken up as regards the remaining extent, of which the petitioner's land forms a part and that, therefore, it cannot be said that the proceedings were unduly delayed by the authorities concerned. That there is some delay cannot be disputed. The fact that Ayisha Bibi, made a request to narrow down the width of the road was hardly a ground for not proceeding with the acquisition proceedings against the land of the petitioner. The fact that Ayisha Bibi filed a writ petition could not have also stood in the way of holding an enquiry with regard to the award as regards the petitioner's land. There was undoubtedly delay and there docs not appear to have been such a great urgency as to dispense with the enquiry under Section 5-A. But notwithstanding this delay, I am of the view that the petitioner is disentitled to get any relief in this proceeding for the reason that he himself is guilty of inordinate delay and laches. The notification under Section 4(1) was made in the year 1962 and the declaration was made in the year 1963. He was made aware of the acquisition proceedings at least in 1969, when he received notice regarding the award enquiry. But he thought of this writ petition only in March, 1970. There is no explanation for the inordinate delay in questioning the validity of the notification and declaration. In W.A. No. 127 of 1965, a Bench of this Court held that the writ petition filed two years after the notification was liable to be dismissed on that sole ground. Following that decision, another Bench of this Court in Mohd. Habibullah v. Special Deputy Collector : AIR1967Mad118 held that a delay of three years between the date of the notification and the date of the filing of the writ petition was sufficient ground to refuse to interfere with the acquisition proceedings. In the instant case, there is a delay of nearly seven years after the issue of the declaration under Section 6. As this inordinate delay has not been explained satisfactorily, I do not feel compelled to interfere with the acquisition proceedings.

9. In the result, the writ petition is dismissed.

No costs.


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