IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:17-3-2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.47767 of 2006, 23199 and 23205 of 2007 and connected miscellaneous petitions. ..... N.Sundararajan ... Petitioner in WP.No.47767 of 2006 V.K.Rajaasekaran ... Petitioner in WP.No.23199 of 2007 K.Gunasekaran ... Petitioner in WP.No.23205 of 2007 vs. 1.Government of Tamil Nadu rep. By its Secretary Local Administration Fort St.George, Chennai 9. 2.The District Collector Vellore District, Vellore. 3.The Commissioner Vellore Municipality, Vellore. 4.The Sub-Registrar Registration Department Vellore. ... Respondents in all the WPs. Writ petitions filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus and Certiorari as stated therein. WP 47767/06: Writ of Certiorari calling for the records of the third respondent in his letter No. Ka. No. 8292/96/F1, dated 26.7.02 quash the same. https://hcservices.ecourts.gov.in/hcservices/ WP.23199/07: writ of Certiorarified Mandamus calling for the records from the file of 1st respondent in respect of G.O.No.503 dated 28.10.99 and quash the same and grant such other relief as deems to this court under the circumstances of the case. WP. 23205/07: Writ of Certiorarified Mandamus calling for the records from the file of 1st Respondent in respect of G.O.No.503 dated 28.10.99 and quash the same. For petitioners : Mr. V.Karthikeyan For respondents : Mr. L.S.M.Hasan Fizal Government Advocate for R.1,R.2 & R.4 Mr. K.R.Thamizhmani for R.3 COMMON ORDER Writ Petition No.47767 of 2006, is filed by the petitioner therein challenging the letter of the third respondent, Commissioner, Municipal Administration, Vellore Municipality dated 26.07.2002, under which the said third respondent has informed the Sub-Registrar, Vellore, who is the 4th respondent that he should not register any document including the General Power of Attorney, Will, Sale deed, etc. in respect of lands in Vadavellore Nagaram, comprised in Survey Nos.175, 178, 195/1A, 202/1, 191/1, 190/1, 199/1 and 15/1 in Ward No.I, Block No.2, since the District Collector, Vellore has directed to send proposal for acquisition of the above said lands on private negotiation. 2. The other two writ petitions, viz., WP.Nos.23205 and 23199 of 2007 are filed by the respective petitioners challenging the Government Order in G.O.(D).No.503 dated 28.10.1999, under which the Government having considered that it is necessary to have a new bus stand at Vellore, permitted the District Collector to call for proposal for acquisition of 9.75 acres by private negotiation, permitting to purchase 8.75 acres of land belonging to Vellore District Consumer Co.operative Society at the market rate, and directed the sale consideration to be paid without interest to the Society by the Municipality in three year instalments and also permitted the District Collector to transfer 0.77 acres of land of Vellore Municipality, which was categorised as canal poramboke and further directed that after starting of the new bus stand, the old bus stand shall be used as local bus stop. 3. The petitioner in W.P.No.47767 of 2006 is the owner of the lands comprised in Town Survey Nos.158, 172, 173, 175, 178 and 195/1A to the extent of 8.07 acres. According to the petitioner, the Collector, Vellore District, the Commissioner, Vellore Municipality and the Sub-Registrar, Vellore have approached him in 1998 in respect of take-over of the said lands for the formation of new bus stand. The case of the petitioner is that the second and third respondents have also approached the other land owners for taking over such lands by negotiation without resorting to acquisition as per the Land Acquisition Act. The petitioner has https://hcservices.ecourts.gov.in/hcservices/ agreed to give the lands in S.Nos.175 and 175-A and given consent on condition that he should be given compensation in accordance with the guideline value and also on condition that his other lands should not be disturbed. That consent was given, since it was for public purpose. The Municipal Administration has passed resolutions on 28.04.1999 and 15.07.1999, accepting the terms expressed by the petitioner, however, the Government and Commissioner of Municipal Administration have not taken any steps to take over the lands or to acquire the same under Land Acquisition Act. The petitioner has sent many letters including lawyer's notice dated 03.12.2000, to give effect to his consent. However, the second respondent by letter dated 05.09.2001, has stated that taking over of the lands by private negotiation is not possible and also informed that there is a proposal to acquire the lands under the Land Acquisition Act. Even thereafter nothing was done. In the meantime, by the impugned order, the third respondent has directed the 4th respondent not to register any document in respect of the properties including that of the petitioner comprised in Survey Nos.175, 175-A and 178. 4. Likewise, the petitioner in W.P.No.23199 of 2007 is the owner of the land to the extent of 0.57 cents in T.S.No.188/1 and T.S.No.190/1 having inherited through the Will dated 30.10.1998 executed by his mother Kamalammal, who died on 30.05.2003. The said lands were not acquired by the Government, but the District Collector in his letter dated 12.11.1999 stated that the Government of Tamil Nadu has accorded administrative sanction for setting up of new bus stand in Vellore District Consumer Co.operative Wholesale Stores Ltd., and also acquiring the private properties. When the petitioner intended to transfer the property and applied for no objection certificate from Vellore Municipal Commissioner, the same has been refused on the basis that the petitioner's property is situated next to the bus stand and the refusal is on the basis of the impugned Government Order. 5. Likewise, the petitioner in W.P.No.23205 of 2007 has also claimed other portion of the same property as claimed by the petitioner in W.P.No.23199 of 2007, on the basis of the Will of his mother dated 20.10.1969 and also the registered power of attorney dated 10.10.1998, empowering the petitioner to transact the property. His mother died on 30.05.2003. In this case also when the petitioner has approached for no objection certificate, the same was refused on the ground that it is likely to be acquired as per the impugned Government Order by private negotiation. 6. The conduct of the respondents in proposing to acquire the lands for creation of new bus stand at Vellore by private negotiation either under the Government Order or under the impugned order of the third respondent is questioned on various grounds including that the said order is illegal and without jurisdiction, apart from the legal ground that the third respondent, viz., Commissioner, Municipal Administration, Vellore has no authority to issue such communication to the Sub-Registrar, Vellore, not to register the documents and that the right of the petitioners to get compensation as per the acquisition proceedings is taken away by https://hcservices.ecourts.gov.in/hcservices/ the present method, which is not approved to be a due process of law. 7. The learned Government Advocate on instructions would submit that the proposal for starting a new bus stand is still lying with the local planning authority and therefore, according to him, it is not as if there is no proposal at all for starting a new bus stand, which is of imminent necessity for the said area. The questions to be considered in these cases are as to whether the respondents have any right at all in proceeding with private negotiation without resorting to due process of law for acquisition of land and whether the Sub-Registrar can be informed by any authority not to register any document in respect of the lands on the basis that those lands are likely to be acquired for the purpose of starting a bus stand and that acquisition will be completed by private negotiation. Mr.K.R.Thamizhmani, learned counsel appearing for the 3rd respondent has also reiterated his stand as submitted by the learned counsel for respondents 1,2 and 4. 8. On the facts and circumstances of the case, even though it is the submission made by the learned Government Advocate appearing for the respondents that the proposal of starting a new bus stand is still in existence, it is clear that no concrete decision has been taken so far and in such circumstances, there can be no impediment on the part of the owners of any property to transfer the same under registered documents in accordance with law. 9. In a similar circumstance, in respect of Vellore Municipality itself, when owners of property had applied for planning permission, the same was denied on the ground that there was a proposal for extension of bus stand and in such circumstances, in the writ petitions filed by the owners, viz., WP.Nos.21043 to 21045 of 2006 (S.Elangovan and others vs. The Commissioner, Vellore Municipality, Vellore), by judgment dated 10.10.2006, Prabha Sridevan,J. has held that mere pendency of proposal is not a ground for refusal of planning permission and the Government at any time can exercise its powers of acquisition in accordance with law if the same is required for pubic purposes. The relevant portion of the said order is as follows: " 7. In these circumstances, the writ petitions are disposed of as follows: The possibility that in the distant future, the State may undertake to extend the Bus Stand, cannot be a ground for refusing the planning permission. If after, several years, the properties of the petitioners are sought to be acquired, the Government may exercise its power under the Acquisition Proceedings and if the same is done in accordance with law, there is nothing to restrain the Government from acquiring any land, for public purposes. On that ground, today, if the application of the petitioners are rejected, then the petitioners' right to property is violated. The petitioners shall resubmit their applications for planning permission within seven days from the date of receipt of a copy of this order. The respondent is https://hcservices.ecourts.gov.in/hcservices/ therefore directed to consider the petitioners planning permission and pass orders within 30 days from the date of receipt of the applications. If, according to the respondent, some of the development planning rules have been violated, the respondent shall specify the same thereafter and if possible, the petitioners can submit a revised plan in conformity with the rule that the respondent cites. If the respondent does not pass orders within 30 days from the date of receipt of a copy of this order, then, the petitioners will be entitled to proceed with the work in accordance with the provisions of 202(2) of the Act." 10. In yet another circumstance, when the Government passed G.O.Ms.No.241 Housing and Urban Development (UD-III-1) Department dated 19.09.2003, by which the State Government with an intention to develop an "administrative city" in the outskirts of Chennai to put up a Secretariat Complex, directed that no land transaction should be allowed in these villages, viz., Thiruvidhandhai group of villages and the local bodies should not grant any planning or building permission for development and the Government Agencies should not take any developmental activities and the Collector should not assign any poramboke lands, that was challenged by way of writ petitions before this Court. 11. That was a batch of writ petitions in W.P.No.23318 of 2005 etc. (P.Raharyaiah vs. State of Tamil Nadu and others), wherein the challenge against the said Government Order was made on the basis that when the issue relating to registration of documents and conveyance is governed by the provisions of Indian Stamp Act and Indian Registration Act and the grant of planning permission is governed by the Town and Country Planning Act, the impugned Government Order cannot be passed in exercise of the powers under Article 162 of the Constitution of India. Applying the ratio laid down by the Division Bench of this Court in S.Arunachalam and others vs. State of Tamil Nadu rep. By its Commissioner and Secretary, Local Administration and Water Supply Department, Madras 9 and others – 1997 (1) CTC 129, wherein the Division Bench has clearly held that when the provisions of the said law are already covered by the statutes passed by the legislature, the executive power under Article 162 of the Constitution of India is not available in respect of those matters which are covered by legislation, and also referring to the earliest judgement of the Supreme Court in Ram Jaaway vs. State of Punjab (AIR 1955 SC 549), wherein the scope of executive power under Article 162 of the Constitution of India was clearly discussed, the learned Judge (F.M.Ibrahim Kalifulla,J.) has held that the Government Order cannot be said to be one passed in exercise of powers under Article 162 of the Constitution of India. 12. Likewise, in State of Rajasthan and others vs. Basant Nahata (2005 (12) SCC 77), the vires of Section 22-A of the Registration Act,1908, wherein the State Government was authorised by notification to declare registration of any document or clause of document is opposed to public policy, was dealt with. In that https://hcservices.ecourts.gov.in/hcservices/ case, based on the power conferred under Section 22-A of the Act, the State of Rajasthan has issued various notifications putting restrictions on the power of registration of various documents, including power of attorney on the ground that it is opposed to public policy. The Supreme Court while declaring the said Section 22-A as ultra vires, has held that various documents, for instance, the power of attorney are governed by the Contract Act and Power of Attorney Act,1882 and if any power of attorney is executed under the said Act, the same is valid in law and subject to the provisions of the Act, is not compulsorily registrable. Holding that there is a presumption in favour of a statute as to its constitutionality, the Supreme Court dismissed the appeal filed by the State of Rajasthan and held as follows: "67. For the reasons aforementioned, we do not find any merit in this appeal which is dismissed accordingly. No costs. 68. So far as amendments made by other States are concerned, we are of the opinion that any order passed by a Sub-Registrar or Registrar refusing to register a document pursuant to any notification issued under Section 22-A of the Act would not be reopened." 13. In T.Vijayalakshmi and others vs. Town Planning Members and another (2006 (8) SCC 502), while considering the Karnataka Town and Country Planning Act,1961, under which the appellants before the Supreme Court, who are the owners of agricultural lands have filed applications for approval of building plans before the Bangalore Development Authority, which were rejected in terms of letter dated 15.06.2005 on the premise that the properties fall within "valley zone in the proposed comprehensive plan", the Supreme Court held that unless and until appropriate amendment is made in the legislation, any such letter cannot be a ground for rejecting the plan submitted. The relevant portion of the judgement is as follows: "13. ....... Whether the amendments to the said comprehensive development plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a development plan must conform to the provisions of the Act. As notice hereinbefore, the State has called for objection from the citizens. Ecological balance no doubt is required to be maintained and the courts while interpreting a statute should bestow serious consideration in this behalf, but ecological aspects, it is trite, are ordinarily a part of the town planning legislation. If in the legislation itself or in the statute governing the field, ecological aspects have not been taken into consideration keeping in view the future need, the State and the Authority must take the blame therefor. We must assume that these aspects of the matter were taken into consideration by the Authority and the State. But the rights of the parties cannot be intermeddled with so long as an appropriate amendment in https://hcservices.ecourts.gov.in/hcservices/ the legislation is not brought into force." 14. Applying the ratio laid down in all the above said cases, there is no difficulty to come to the conclusion that on the facts and circumstances of the present case, as on date when there is no action taken by the Government under the Land Acquisition Act for acquiring the lands for the purpose of creation of a new bus stand, the right under the Indian Registration Act as well as the Indian Stamp Act, which are comprehensive and which enable the owners of the property to transfer the same by various documents by way of registering the same in accordance with law, cannot be taken away by the impugned order directing the registering authority not to register documents. There is absolutely no provision either under the Indian Registration Act or Indian Stamp Act for the purpose of prohibiting registration in respect of the lands on the ground that there is a proposal to acquire the land in future and the Government is negotiating for the same. 15. It is also relevant to point out that even if such acquisition of the lands is really intended for the public purpose, it is not as if the Government cannot resort to the due process of law for acquiring the same for public purposes. Unless and until such powers are exercised by the Government in the manner known to law, the impugned Government Order as well as the communication of the Commissioner of Municipal Administration, restraining the registering authority from registering documents in respect of various lands is a clear breach of the legal provisions, taking away the valuable rights of owners of the lands in transferring the same under various documents. In view of the same, the impugned order of the third respondent in W.P.No.47767 of 2006 dated 26.07.2002, is set aside and the said writ petition stands allowed. 16. The portion of the impugned G.O.Ms.No.503 Municipal Administration dated 28.10.1999, viz., in so far as it relates to the permission given by the District Collector to acquire the private lands to the extent of 9.75 acres by private negotiation is also set aside without detriment to the Government's power of acquisition of such lands for public purpose in accordance with law. Accordingly, WP.Nos.23199 and 23205 of 2007 are ordered. There will be no order as to costs in all the above cases. Connected miscellaneous petitions are closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar kh https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary Government of Tamil Nadu Local Administration Fort St.George, Chennai 9. 2.The Director Collector Vellore District, Vellore. 3.The Commissioner Vellore Municipality, Vellore. 4.The Sub-Registrar Registration Department Vellore. +1 cc To Mr.V.Karthikeyan, Advocate, SR.14517 +1 cc To Mr.K.R.Tamizhmani, Advocate, SR.14518 +1 cc To Mr.R.Margabandhu, Advocate, SR.15499 W.P.Nos.47767/06, 23199 & 23205 of 2007 nm [co] gkg/26.3 https://hcservices.ecourts.gov.in/hcservices/