IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.01.2011 CORAM THE HONOURABLE MR. JUSTICE VINOD K.SHARMA W.P.No.20769 of 2010 and M.P.Nos.2 to 4 of 2010 B.M.Purnachandran ... Petitioner Vs. 1. The Secretary to Government (Special Initiatives), Planning, Development and Special Initiatives Department, Secretariat, Fort St. George, Chennai 600 009. 2. The Chennai Metro Rail Ltd., Rep. by the District Revenue Officer & Project Implementation Officer, D.No.11/6, Seethammal Road, Alwarpet, Chennai 600 018. 3. The Tamil Nadu Housing Board, Rep. by its Managing Director, Nandanam, Chennai 600 035. ... Respondents Writ petition has been filed under Article 226 of the Constitution of India to issue a writ in the nature of Certiorarified mandamus calling for records in the acquisition proceedings issued by the first respondent under G.O.Ms.No.108, Planning, development and special initiatives (Sl) on 28.07.2010, as per the proceedings No.(II)/ PDSI/486(D)/2010, published in the Tamil Nadu Government Gazette Extraordinary dated 28.07.2020 and quash the same as malafide, abuse of the process of law and therefore null and void and directing the respondents to first assess the value of the above schedule mentioned properties and to pay the just compensation at the market rate to the petitioner and then proceed with the acquisition activities. For petitioner : Mr.A.Thiagarajan, S.C. for S.Ramesh Kumar For respondents : Mr.B.Vijay, G.A. 1 & 3 For respondent-2 : Mr.Mr.A.Vijayakumar https://hcservices.ecourts.gov.in/hcservices/ For respondent-4 : Mr.P.S.Raman Advocate General Assisted by Mr.V.Ramajagadeesan O R D E R The petitioner seeks writ in the nature of Certiorari for quashing the notification issued by the first respondent vide G.O.Ms.No.108 Planning, development and special initiatives (SI) on 28.07.2010 and published in the Tamil Nadu Government gazette Extraordinary dated 28.07.2010 being malafide and abuse of process of law and thus null and void. 2. The petitioner also prays that the respondents be directed to first assess the value of the schedule mentioned property and pay just compensation at market rate to the petitioner before proceeding with the acquisition proceedings. 3. However, later part of the prayer made in the writ petition was withdrawn by the petitioner. 4 The facts leading to the filing of the present writ petition are that the land in dispute is being acquired by the first respondent for the purpose of implementation of Chennai Metro Rail Project. To achieve this object notification under Sec.4(1) of the Land Acquisition Act, 1894 was published in the Tamil Nadu Government Gazette Extraordinary dated 28.07.2010 under G.O.Ms.No.108 Planning, development and special initiatives (Sl) on 28.07.2010 vide which the enquiry under Section 5A was dispensed with, by invoking the provision of Sec.17(4) of the Land Acquisition Act, 1894. 5. The petitioner being a owner of the land under the acquisition is aggrieved by this acquisition of land and challenge it being malafide and abuse of process of law and thus null and void. 6. As already observed, the alternative relief claimed by the petitioner in the writ petition was given up by the petitioner. 7. The case of the petitioner is that on the earlier occasion, i.e. during the year 1975 also, the subject land was sought to be acquired for setting up Housing Scheme which was challenged by the petitioner along with his brother. The writ petition was allowed on 22.04.1991, but the Hon'ble Supreme Court allowed C.A.No.1867 of 1992 on 17.01.1996, but exempted the lands now under acquisition, viz., 1.50 acres, keeping in view of the object for which the land was sought to be acquired, and the request of the petitioner for using it for residential purpose. https://hcservices.ecourts.gov.in/hcservices/ 8. In view of the judgment of the Hon'ble Supreme Court in C.A.No.1867 of 1992, the Tamil Nadu Government withdrew the acquisition proceedings vide Government Gazette Extraordinary notification No.339 dated 06.07.1996. 9. The case of the petitioner further is that on 23.12.2008 the second respondent issued a notice in Na.Ka.No.14/2008/N.I.A. CMRT stating therein that the second respondent was anticipating to acquire schedule mentioned properties for Chennai Metro Rail Scheme. The petitioner vide notice referred to above, was called for counseling on 26.12.2008 for fixing the compensation of the land. 10. The case of the petitioner is that he attended the counseling but there was no discussion was held to fix the compensation as the second respondent was not sure that the land of the petitioner would be acquired. The petitioner requested for personal hearing. 11. The case of the petitioner further is that prior to the filing of this writ petition, the petitioner filed W.P.No.17867 of 2010 with a prayer for issuance of a writ in the nature of mandamus directing the Tamil Nadu Housing Board, the third respondent, to hand over the land measuring to an extent of 1.50 acres to the petitioner with separate boundaries in survey No.167/9 as directed by the Hon'ble Supreme Court in C.A.No.1867 of 1992 and it is said writ was pending. 12. It is also pleaded in the affidavit that in response to the counter filed in his previous W.P.No.17867 of 2010, he came to know about the acquisition proceedings and was able to collect the Tamil Nadu Government Gazette extraordinary notification dated 28.07.2010, which is under challenge in the present writ petition. 13. The petitioner challenged the notice issued under Section 4 of the Land Acquisition Act, on the grounds:- (i) That the procedure laid down under the Act was not followed before issuing notification by invoking urgency provisions. (ii) That acquisition vide notification dated 28.07.2010 is illegal, arbitrary and against principles of natural justice. (iii) That the first respondent has not published the notification regarding acquisition of land sought to be acquired, in two daily newspapers circulated in the locality of the schedule mentioned properties, and that the substance of such notification was also not displayed in the area where the schedule mentioned properties are situated. (However, it is admitted by the learned Senior counsel that notification in fact was issued in two daily https://hcservices.ecourts.gov.in/hcservices/ newspapers and that the substance of the notification was also displayed in the area where the properties are situated. Therefore, there is no violation in the issuance of notification.). (iv) That before invoking the provision of Sec.17 of the Act, the respondents have not determined the compensation for the land though the petitioner and other land owners were called for counseling. This plea of the learned counsel for the petitioner cannot be accepted as there is no provision for determination of compensation prior to the issuance of notice under Sec.4 of the Act. Under the Act, the respondents cannot take possession of the acquired land till the payment of compensation under Sec.17 of the Land Acquisition Act, 1894. (v) That no enquiry was conducted for determining the quantum of compensation. At the time of argument, the learned Senior counsel for the petitioner challenged the invoking urgent provision in this case being not warranted. This contention is noticed to be rejected, for the reason that it is admitted case of the petitioner that the petitioner was called for negotiation and that the quantum of compensation and determination of interim compensation were not arrived at. Therefore, notification under Section 4 of the Act cannot be challenged on the ground of pre-determination of compensation. With regard to contentions of enquiry and consideration of objections is concerned, the very object of Sec.17 of the Act is to invoke urgent provision is to dispense with the enquiry. 14. The contention of the learned Senior counsel was that admittedly the petitioner was called for counseling before issuing notification and thereafter sufficient time has been taken by the State Government to form an opinion, therefore it is not a case where the petitioner can be denied right to file objection against acquisition, by invoking section 17 of the land acquisition Act. 15. In order to fortify the contention, the learned Senior counsel contended that this is a case where notification in respect of acquisition of the said land was quashed on an earlier occasion and the petitioner was permitted to raise residential house, and placed reliance on the judgment of the Hon'ble Supreme Court in the case of Union of India and others Vs Mukesh Hans, etc. (A.I.R. 2004 SUPREME COURT 4307) wherein the Hon'ble Supreme Court was pleased to laid down that mere existence of an urgency under Sec.17(1) or unforeseen emergency under Sec.17(2) would not by itself be sufficient for dispensing with Sec.5-A enquiry. https://hcservices.ecourts.gov.in/hcservices/ "The mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by itself be sufficient for dispensing with Section 5-A enquiry. If that was not the intention of the legislature then the latter part of sub-section (4) of Section 17 would not have been necessary and the legislature in Sections 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A enquiry will be dispensed with. But then that is not the language of the section which in our opinion requires the appropriate Government to further consider the need for dispensing with Section 5-A enquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with Section 5-A enquiry does not mean that in each and every case when there is an urgency contemplated under Section 17(1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with Section 5-A enquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the enquiry under Section 5-A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the Section 5-A enquiry is inherent in the two types of urgencies contemplated under Sections 17(1) and (2) of the Act. It cannot be said that once the appropriate Government comes to the conclusion that there is an urgency or unforeseen emergency under Sections 17(1) and (2), the dispensation of enquiry under Section 5-A becomes automatic. Sub-section (4) of Section 17 itself indicates that the “Government may direct that the provisions of Section 5-A shall not apply” (emphasis supplied) which makes it clear that not in every case where the appropriate Government has come to the conclusion that there is urgency and under sub-section (1) or unforeseen emergency under sub-section (2) of Section 17, the Government will ipso facto have https://hcservices.ecourts.gov.in/hcservices/ to direct the dispensation of the enquiry." 16. The reliance was also placed by the learned Senior counsel for the petitioner on the judgment of the Hon'ble Supreme Court in the case of Essco Fabs Private Ltd. and another Vs. State of Haryana and another ((2009)2 S.C.C. 377), Government of Goa Vs. A.H.Jafar and Sons and another ((2008)11 S.C.C. 18). 17. In all these cases, the Hon'ble Supreme Court was pleased to lay down that before invoking provision of Sec.17, the authority concerned must satisfy themselves that there was such an urgency to dispense with. The enquiry therefore is inherent for invoking urgency contemplated under Sec.Sec.17(1) and (2) of the Act. On the basis of the want of urgency in the judgments referred to above, notification was quashed, as the Hon'ble Supreme Court found that there no was justification to invoke Sec.17. 18. The reliance was also placed by the learned Senior counsel on the judgment of the Hon'ble Supreme Court in the case of Anand Singh and another Vs. State of U.P. and others (2010 A.I.R. S.C.W. 5152) to contend that the authorities while invoking emergency provision are not only to see urgency but also to form an opinion, that it is necessary to dispense with enquiry under Sec.5A, and in case no such enquiry is conducted, the notification deserved to be set aside. 19. The Hon'ble Supreme Court in the case of Anand Singh and another Vs. State of U.P. and others (supra) was pleased to laid down as under: "32. Adverting now to the facts of the present case, it would be seen that somewhere in February, 2000, a Land Selection Committee was constituted to identify the availability of land for a housing colony by the GDA. In April, 2001, the Committee so constituted inspected the site and proposed acquisition of land in Village Manbela and few other villages but nothing further was done as the tenure-holders opposed the acquisition of their land and the Commissioner, Gorakhpur in public interest stayed proposal for acquisition. Abruptly, the notifications for the proposed acquisition were issued on November 22, 2003/February 20, 2004 under Section 4 of the Act. In these notifications urgency clause was invoked and the enquiry under Section 5A was dispensed with. Then, for more than one year nothing was done. It was only on December 28, 2004 that a declaration under Section 6 was made. If the https://hcservices.ecourts.gov.in/hcservices/ matter could hand on from April, 2001 to November 22, 2003/February 20, 2004 before the notifications under Section 4 were issued and for about a year thereafter in issuance of declaration under Section 6, acquisition proceedings could have been arranged in a manner so as to enable land owners and/or the interested persons to file their objections under Section 5A within the prescribed time and complete the enquiry expeditiously. It is true that insofar as Uttar Pradesh is concerned, there is amendment in Section 17. Sub Section (1A) enables the Government to take possession under under sub section (1) of Section 17 if the land is required for public purpose viz; 'planned development'. Yet for forming an opinion that provisions of Section 5A shall not apply, the State Government must apply its mind that urgency is of such nature warranting elimination of enquiry under Section 5A. Although some correspondence between the authorities and the Government was placed before the High Court by the GDA, but no material has been placed on record by the State Government either before the High Court or before this Court indicating the application of mind that the urgency was of such nature which warranted elimination of the enquiry under Section 5A of the Act. It is interesting to note that GDA wanted the subject land to be acquired because their land bank had no land and they wanted land to keep the Authority running. If profit-making and the substances of the Development Authority was the motive, surely urgency was not of such nature that it could brook no delay whatsoever. In the facts and circumstances of the present case, therefore, the Government has completely failed to justify the dispensation of an enquiry under Section 5A by invoking section 17(4). For this reason, the impugned notifications to the extent they state that Section 5A shall not apply suffer from legal infirmity. The question, then arises whether at this distance of time, the acquisition proceedings must be declared invalid and illegal. In the written submissions of the GDA, it is stated that subsequent to the declaration made under Section 6 of the Act in the month of December, 2004, award has been made and out of the 400 land owners more than 370 have already received compensation. It is also stated that out of the total cost of Rs.8,85,14,000/- https://hcservices.ecourts.gov.in/hcservices/ for development of the acquired land, an amount of Rs.5,28,00,000/- has already been spent by the GDA and more than 60% of work has been completed. It, thus, seems that barring the appellants and few others all other tenure-holders/land-owners have accepted the 'takings' of their land. It is too late in the day to undo what has already been done. We are of the opinion, therefore, that in the peculiar facts and circumstances of the case, the appellants are not entitled to any relief although dispensation of enquiry under Section 5A was not justified." 20. In view of the contentions raised by the learned Senior counsel for the petitioner, the learned Advocate General was directed to produce the file showing the application of mind before invoking urgency provision. 21. The file produced before this Court shows that before issuing G.O.Ms.No.19, the question of urgency was considered. G.O.Ms.No.19, dated 25.03.2009 reads as under: "ORDER: Chennai metropolis is suffering from acute traffic congestion, resulting in hardship to the Public, through economic loss, road accidents, pollution and other problems. In accordance with the National Urban Transport Policy, a metro rail system is a necessity for Chennai. Urgent steps are needed to establish a metro rail system to address the severe transport problems. 2. In the Government Order second read above, read with the Government Order first read above, the Government have approved in principle, the two initial corridors of the Chennai Metro Rail Project from Washermenpet to Chennai Airport (Corridor-I) and Chennai Fort to St. Thomas Mount (Corridor-II) at an estimated cost of Rs.11,124 crores (excluding taxes, duties escalation, interest during construction etc.). The Chennai Metro Rail Limited, the Special Purpose Vehicle (SPV) formed for this purpose is implementing the project. The project completion cost has now been estimated at Rs.14,600 crores (including escalation, interest during construction, commitment charges and Central taxes but excluding State taxes and cost of vacant State Government land). The project is being funded by Government https://hcservices.ecourts.gov.in/hcservices/ of India and the State Government by way of equity contribution and subordinate debt. (Government of India 20% and State Government 20.78% and the balance 59.22% being met from the loan assistance from Japan International Corporation Agency). The Government of India has also accorded sanction for the project and for its participation vide their letter seventh cited. 3 Since the Chennai Metro Rail Project has to be implemented within the tight time schedule, the land acquisition process has to be completed at the earliest, to avoid time and cost over-runs. In respect of purpose by private negotiation, the Chennai Metro Rail Limited, as a Special Purpose Vehicle, will follow its own Board-approved procedures. 4. based on the request from the Managing Director, Chennai Metro Rail Limited, the District Collectors of Chennai and Kanchipuram have forwarded proposals to the Commissioner of Land Administration for according administrative sanction for acquisition/alienation of approximately 49.745 hectares of which 8.47.4 hectares under urgency clause 17(2) of Land Acquisition Act 1894 and approximately 41.27.1 hectares by way of alienation/transfer for the Chennai Metro Rail Project. Total requirement of land in Chennai and Kanchipuram districts is 49.74.5 hectares as mentioned below. Distric t Private Land (hectares) State Govt. Land (hectares) Govt.(other than State Govt. Land (hectares) Total (hectare s) 1 2 3 4 5 Chennai 5.1 4. 2 29.64.0 2.48.5 37.26.7 Kanchi- puram 3.33.2 -- 9.1 4. 6 12.47.8 Total 8.47.4 29.64.0 11.63.1 49.74.5 The Commissioner of Land Administration has recommended the proposal seeking administrative sanction for the above extent of 49.74.5 hectares. He has also recommended for the sanction of 22 posts in Chennai and 11 posts in Kanchipuram districts for attending land acquisition works. https://hcservices.ecourts.gov.in/hcservices/ 5. In the circumstances stated above, the Government after careful consideration of the proposals of the District Collector of Chennai and Kanchipuram and the recommendation of the Commissioner of Land Administration, accord administrative sanction for acquisition of 8.47.4 hectares of private patta lands as identified by Chennai Metro Rail Limited and the District Collectors, Chennai and Kanchipuram districts as indicated in Col.2 of th table in para 4 above for implementation of Chennai Metro Rail Project, under the urgency provision of Section 17(2) of the Land Acquisition Act 1894. The Government also accord administrative sanction for alienation of 29.64.0 hectares of Government Poramboke lands and transfer of 11.63.1 hectares of Government lands other than State Government lands. The details of villages covered under the administrative sanction are indicated in the Annexure to this order. 6. In respect of alienation of State Government lands i.e. poramboke land and various other department land, the District Collectors, Chennai and Kanchipuram are directed to get the consent from the departments which hold the lands at present. The District Collectors shall send necessary alienation and transfer proposals to the Government in Revenue Department through the Commissioner of Land Administration for issue of Government Orders. 7. The entire cost of land which is to be tentatively estimated by the District Collectors shall be credited into Government account under the following head of account. "K. deposit and Advances (b) Deposits not bearing interest – 8443.00 Civil Deposits – 101. Revenue Deposits – AA Revenue Deposits – DPC No.8443 00 101 AA 000F" After completion of the project work, the entire cost of the land should be transferred to respective expenditure service head of account in the detailed head "Deduct – Recoveries" by presenting necessary adjustment bills to pay and Accounts Office/ Treasury Officer concerned. https://hcservices.ecourts.gov.in/hcservices/ 8. The orders for sanction of Land Acquisition staff as recommended by Commissioner of Land Administration will be issued separately. 9. This order issues with the concurrence of Finance Department vide its U.O.No.665/FS/P/09, dated 2.3.2009." 22. The reading of G.O.Ms.No.19 clearly shows that urgency provision in this case were not mechanically invoked, but due to the fact of urgency in setting up of Chennai Metro Rail project. This was also taken note of while publishing the notification under Sec.4 of the Act. 23. The learned Advocate General placed reliance on the judgment of the Hon'ble Supreme Court in the case of First Land Acquisition Collector and others Vs Nirodhi Prakash Ganguly and another (2002 (4) SCC 160) to contend that mere fact that earlier notification under Sec.4 and 6 of the Land acquisition Act is quashed cannot be a ground to challenge the exercise of power of under Sec.17 of the Land acquisition Act. It cannot be said that exercise of power under Sec.17 is illegal or malafide only on the sole ground that the earlier notification under Sec.4 of the Act was quashed. 24. In order to rebut the stand of the petitioner that process of acquisition started earlier and thereafter the Government had taken time to form an opinion cannot be a ground to quash the notification published in exercise of power under Sec.17 of the Act. The learned Advocate General placed reliance on the Division Bench judgment of this Court in the case of The Commissioner, Corporation of Chennai Vs C.K.Ramachandran and 7 others (2009(5) C.T.C. 509) wherein the Hon'ble Division Bench of this Court after considering the matter in detail was pleased to hold as under: "19. This takes us to the next question as to whether the Government had sufficient reason for dispensing with the enquiry under Section 5-A in the given facts of the case. The learned counsel appearing for the Corporation of Chennai produced the relevant files and we have perused the same. In terms of sub-section (3-A) of Section 17 of the act, the Collector shall, without prejudice to the provisions of sub-section 3, tender payment of 80% of compensation for such land as estimated by him to the persons interested entitled thereto before taking possession. By virtue of the above provision, a proposal emanated from the District Collector to the Government for sanction of payment of 80% of compensation in a sum of Rs.9,70,73,400/- for the total area of 18,225 https://hcservices.ecourts.gov.in/hcservices/ sq.ft. Of land to be acquired. That was processed and inspection of the land in question was carried on by the Tahsildar concerned and in his proceedings dated 22.4.2008, he also recommended for the said sanction of the amount. Thereafter, the commissioner, Corporation of Chennai also sought permission from the District Collector in his communication dated 22.4.2008 for acquiring the land. Considering all the above aspects, the Government in G.O.Ms.No.120 dated 26.6.2008 accorded approval apparently keeping in mind the urgency clause. In all these correspondences, not only the Tahsildar concerned, but also the Commissioner as well as the Government had referred to only the provisions of urgency clause indicating the requirement to invoke the said provision. Finally, a note was placed for invocation of the urgency