IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.01.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.20424 of 2009 and M.P.NOs.1 to 5 OF 2009 M/s.Mahindra World City Developers Limited, (formerly known as Mahindra Industrial Park Ltd.), a company registered under the Companies Act, having its Registered office at Mahindra Towrs, 17/18, Pattulos Road, Chennai-600 002. .. Petitioner Vs. 1.State of Tamil Nadu, rep. By its Secretary to Government, Industries Department, Fort St. George, Chennai-600 009. 2.The District Collector, Kancheepuram District, Kancheepuram. 3.The Special Tahsildar, (Land Acquisition), Mahindra Industrial Park Scheme, Melamaiyur, Chengalpattu. 4.Shree Shetty 5.Sadan Kumar Shetty 6.Rytik Shetty .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the first respondent relating to the proceedings in GO(Ms)No.88 Industries (MIE-1) Department dated 30.7.2009 and to quash the same insofar as it relates to survey Nos.405/3,4 and 5 is concerned and consequently, to direct the respondents 1 to 3 to continue the land acquisition proceedings. For Petitioner : Mr.G.Masilamani, SC for Mr.R.Bharathkumar For Respondents : Mr.R.Neelakantan, GA for RR1 to 3 Mr.Yashod Varadhan, SC for Mr.P.Valliappan for RR4 to 6 https://hcservices.ecourts.gov.in/hcservices/ ORDER Heard both sides. 2.The petitioner is a registered company. They have come forward to file the present writ petition seeking to challenge the order of the first respondent State made in G.O.Ms.No.88, Industries (MIE-1) Department, dated 30.7.2009 and after setting aside the same in respect of Survey Nos.405/3, 405/4 and 405/5, consequently direct the respondents 1 to 3 to continue the land acquisition proceedings and pass such further orders. 3.It is the case of the petitioner that they were promoting an Industrial Park pursuant to the Government order in G.O.(2D) No.88, Industries, dated 11.6.1997. The company had established the Industrial Park in an area about 1400 acres on the Eastern side of National Highway No.45 near Chengalpattu, Kancheepuram District. Steps were taken by the company to acquire lands in various villages including Veerapuram, Paranur, Thenmelpakkam, Rajakulipettai, Hanumanthai, Kunnavakkam and Anjur villages as well as patta lands in survey No.405 in Chettipunyam village through private negotiations. An approach road to the industrial park was from the side of the National Highway-45 towards east through survey No.405 in Chettipunyam village and the lands belonging to the Forest Department in Thirutheri Reserved Forest in S.No.108/1 at Thirutheri village. 4.According to the petitioner, since there is high intensity of traffic in the National Highway as it is a vital link between North and South Tamil Nadu, the entry point to the industrial park became crowded. There are large number of labour intensive industries established and operated by Multi National Corporations. A foolproof method is required to be taken to prevent terrorist and other sabotage activities. For those purposes, vehicle entry into the industrial park had to be stopped and parked aside and to be allowed only after a thorough check to the industrial park. Therefore, the petitioner company wanted to have adequate land at the entry point. Since the present road was carved out from the land allotted by the State Government from the reserved forest area and for the purpose of operating an huge industrial park which is spread over 1400 acres of land and to avoid bottleneck, they require 4.88 acres, which were originally notified. 5.It was stated that the land in survey No.405 in Chettipunyam village was originally included in the master plan of the petitioner's company project. Contiguous lands were acquired without affecting and displacing the residents of the villages and without hazard to the environment, trees and lands with irrigation source. The said land was required for widening the approach road and for railway connectivity. It is claimed that the project costs is running to several hundred crores. It is stated that on the south of the forest land, respondents 4 to 6 are owning 2.5 acres https://hcservices.ecourts.gov.in/hcservices/ in S.No.405/1, which was further subdivided into S.Nos.405/1b and 2b. The said lands have been purchased by the petitioner on 24.12.1997 under eight registered sale deeds registered with the Sub Registrar, Chengalpattu. Further east of the said lands, reserved forest in Thirutheri village is situated. It is in the North of the land of respondents 4 to 6, a road to reserved forest is available with a width of 4 meters. Further on the North of the said road near the land of respondents 4 to 6 lies a nursery raised by the Forest Department. Therefore, without the land in survey No.405 in Chettipunyam village and without permission from the forest department, the land in the reserved forest cannot be used for approach road. Therefore, the petitioner company approached the State Government for acquiring patta land in survey No.405 (to an extent of 5 acres) and also for permission to use the forest land. 6.It was claimed that feasible access is available only through Thirutheri reserved forest and the land in survey No.405 leading to Veerapuram village. The State Government granted permission on 10.11.1998 to use 1.845 hectares of forest land in Thirutheri reserved forest to develop the road with 45 meters width subject to the company transferring to an extent of 6.16 hectares of non forest land to compensate the lands allotted by the Government. They were also directed to pay compensation, afforestation charges for 40 hectares with other conditions. The petitioner company had also purchased 6.16 hectares in Appur village and gifted it to the forest department with registered documents and also remitted about Rs.29 lakhs for afforestation charges. It was only thereafter, the State Government passed G.O.Ms.No.201 Forest, dated 11.9.2000, granting permission to use the forest land. The company had also invested huge amounts to develop the approach road. But, without the land owned by respondents 4 to 6, the existing road with a width of 45 meters will have no use. The forest department had also declined to give any land as entry point since forest nursery is situated. Therefore, it is claimed by the petitioner company that the lands in S.Nos.40/3,4 and 5 belonging to respondents 4 to 6 should be acquired for widening the approach road. 7.It was also claimed that notification under Section 4(1) of the Land Acquisition Act, 1894 was issued by the State Government vide G.O.Ms.No.676, Industries Department, dated 1.9.1999 in respect of S.Nos.405/1A2 (Part), 405/1B2 (part), 405/3, 405/4 and 405/5 measuring to an extent of 2.02.5 hectares at Chettipunyam village. The purpose of acquisition revealed in the notification was for setting up an Auto Ancillary Industrial Park by the petitioner company. The notification was published in the local dailies as well as in the Government gazette. Thereafter, the substance of the notification was published in the locality. Respondents 4 to 6 sent their objections, dated 28.9.1999 to the third respondent, Special Tahsildar, Land Acquisition. The third respondent communicated the said objections to the petitioner company. The petitioner company had submitted its remarks, dated 20.10.1999. Thereafter, an enquiry under Section 5-A was fixed on 26.10.1999. https://hcservices.ecourts.gov.in/hcservices/ 8.It is claimed that the representatives of respondents 4 to 6 were present in the enquiry. The reply given by the petitioner company was also recorded. Further, declaration under Section 6 was issued vide G.O.Ms.No.334, Industries Department, dated 20.9.2000. The said declaration was published in two dailies as well as in the locality. The petitioner company also approached respondents 4 to 6 and their family members for purchasing the entire extent of 3.21 acres. However, they refused to sell their lands. It was thereafter, the Government was approached to acquire those lands in a larger public interest. After approaching the State Government, the petitioner company had also deposited tentative land cost of Rs.1,95,25,000/-, which is lying with the Government Treasury since 03.10.2005. A draft declaration under Section 6 was duly approved by the State Government and was published in the Government gazette on 20.9.2000. It was at this stage, respondents 4 to 6 filed writ petitions being W.P.Nos.18114 to 18116 of 2000 before this court, challenging the land acquisition proceedings as well as the notification under Sections 4(1) and 6 of the Act. An interim stay of dispossession was granted on 13.11.2000. 9.The State Government and the petitioner company contested the claim made by respondents 4 to 6. This Court by an order dated 31.8.2001 allowed the writ petitions filed by respondents 4 to 6 and quashed the notification under section 6 with liberty to respondents 1 to 3 to proceed afresh from the stage of enquiry under section 5A. Those writ petitions were allowed on the technical ground that remarks of the requisitioning body was not furnished to respondents 4 to 6. Time limit of three months to complete the process was also fixed by this court. Thereafter, an enquiry was held on 09.11.2001, in which respondents 4 to 6 have participated and written objections were also filed on their behalf. The objection raised by respondents 4 to 6 was that since Tamil Nadu Acquisition of Lands for Industrial Purposes Act, 1997 was enacted, the third respondent has no jurisdiction to conduct enquiry under the Central Act. 10.It is an admitted case that the State Act (Tamil Nadu Act 10/1999) came into force with effect from 21.09.2001. Thereafter, the State Government by virtue of Section 23 of the Tamil Nadu Act 10/1999 gave up the land acquisition under the Central Act. However, by virtue of Section 23 of the Act 10/1999, the State Government issued G.O.Ms.No.89, Industries Department, dated 6.12.2004 and approved publication of notice in terms of Section 23(2) of the Act. A public notice was also issued under Section 3(2) of the Act 10/1999. It was also published in the office of the District Collector. Thereafter, the Government issued G.O.Ms.No.150, Industries Department, dated 30.11.2006, approved and ordered publication of notification under Section 3(1) of the new Act for acquiring 2.02.5 hectares of patta lands in S.Nos.405/3,4 and 5 in Chettipunyam village for setting up Auto Ancilliary Industrial Park. It was also published in the Tamil Nadu Government Gazette on 3.1.2007. Once publication of notice is issued, it is claimed that the land acquired will be absolutely vest with the Government free from all encumbrances. https://hcservices.ecourts.gov.in/hcservices/ 11.The third respondent had proceeded to issue an order, dated 5.2.2007 under Section 4(2) of the T.N. Act 10/1999, directing the respondents 4 to 6 to surrender and deliver possession of acquired land. It was also stated that the said notice was duly served on respondents 4 to 6 on 8.2.2007. It is at this stage respondents 4 to 6 moved this court once again with writ petitions being W.P.Nos.6010 to 6012 and 7761 to 7763 of 2007 before this court, challenging the acquisition under the new Act. 12.The third respondent at the instructions of the District Revenue Officer, Kanchipuram, by a communication, dated 18.6.2008 directed the petitioner company to send land plan schedule and remarks to him on the ground that respondents 4 to 6 submitted representations to the first respondent Government seeking exemption from land acquisition proceedings in respect of their lands. The petitioner by a communication dated 26.07.2008 requested the third respondent to furnish copies of representations made by respondents 4 to 6. It was also claimed by them that the matter of acquisition is sub-judice before the court and it is not proper for them to furnish any remarks. It is claimed that the copies of representations were not furnished to them. However, by a communication, dated 4.9.2008 and 20.10.2008, the third respondent at the instance of the second respondent, DRO, Kanchipuram, requested the petitioner, the Assistant Executive Engineer, PWD and the Forest Range Officer, Chengalpattu to send a report with regard to the value of trees, wells and buildings in the land owned by respondents 4 to 6. It is claimed that the petitioner was shocked when the first respondent issued G.O.Ms.No.88, Industries Department, dated 30.7.2009 and dropped the land acquisition proceedings in respect of survey numbers in question. 13.It is also found from the said Government Order that respondents 4 to 6 have approached the first respondent for exclusion of land from acquisition. The second respondent District Collector had recommended for exemption from land acquisition proceedings the lands owned by respondents 4 to 6 on the ground that the lands are not contiguous and situated as small pieces, which were not fit for the project work of the petitioner company. As soon as the order of exemption and dropping of acquisition proceedings in respect of the lands belonged to respondents 4 to 6, they withdrew writ petitions in W.P.nos.6010 to 6012 and 7761 to 7763 of 2007 pending before this court. This Court by an order dated 18.8.2009 allowed withdrawal of writ petitions despite opposition from the petitioner. In paragraphs 2 and 3 of the order, this court observed as follows: "2.At this juncture, the learned counsel appearing for the fourth respondent opposes the withdrawal on the ground that they are the beneficiaries to the land acquisition proceedings and the lands are sought to be acquired only for them and hence the petitioners shall not be permitted to withdraw the writ petitions. https://hcservices.ecourts.gov.in/hcservices/ 3.I am unable to accept the said contention of the learned counsel appearing for the fourth respondent. Though, it may be correct to say that the lands are sought to be acquired for the fourth respondent, the Government thought it fit to drop the acquisition by G.O., referred to above. Hence, the petitioners are permitted to withdraw the writ petitions and the writ petitions are dismissed as withdrawn. No costs. If the fourth respondent company have got any right, they are at liberty to challenge the G.O., referred to above in the manner known to law. Consequently, connected miscellaneous petitions are closed." 14.Therefore, the petitioner has come forward to challenge the dropping of acquisition proceedings under T.N.Act 10 of 1999 by G.O.Ms.No.88, Industries Department, dated 30.7.2009. In the writ petition, notice was issued to respondents. Pending the writ petition, on 13.10.2009, this court granted an interim injunction. An interim stay of the Government Order was also sought for. In the meanwhile, on behalf of respondents 4 to 6, a petition in M.P.No.5 of 2009 to dismiss the stay application in M.P.No.2 of 2009 was filed together with the counter affidavit filed by the sixth respondent. A vacate injunction petition was also filed by them in M.P.No.4 of 2009. When these matters came up with the consent of parties, the main writ petition itself was taken up for hearing. 15.In the counter affidavit filed by the sixth respondent, the locus standi of the petitioner to challenge the impugned order is questioned. It was stated that they being only the beneficiary cannot challenge the action of the Government in abandoning the acquisition proceedings. By virtue of the earlier interim order, the possession is still with respondents 4 to 6. The lands owned by respondents 4 to 6 are not required for the petitioner. There are enough space to park the vehicles near Paranur Railway station where already a container terminal has been created. Further, the provision to park the vehicles, lorry and buses in addition to an entry road also provided in the station campus. There are two major entry roads to the petitioner's industrial park. One near Paranur railway station and the other in the adjacent land belonging to respondents 4 to 6. The width of the said road is 45 meters wide. The industrial estate is 1.5 kms. from the National Highway-45. 16.The acquisition was dropped only with a condition that respondents 4 to 6 should withdraw the earlier writ petitions. The Government had correctly come to the conclusion that the lands were not required for industrial purposes. Exemption from acquisition will not affect the petitioner's activities and they have been carrying on the activities all these years without the land in question. It was also claimed that in the lands in question, there are multiple trees and wells. At the time of purchase of those lands, there are number of fruit bearing trees and a well. They have spent huge amounts to develop a thope and the annual yield of https://hcservices.ecourts.gov.in/hcservices/ trees is substantial. 17.It was also stated that original proceedings initiated under the Central Act was illegal and contrary to the limitation prescribed under the statute. The petitioner company had approached respondents 4 to 6 through real estate brokers for purchase of lands. But respondents 4 to 6 were not willing to sell their lands. Therefore, the petitioner company had used its influence to include their lands in the original notification in G.O.Ms.No.630 dated 24.9.1998. The windmill found in the land was omitted to be mentioned. It will not be out of place to mention that the petitioner company had also acquired about 1110 acres of land 2 Kms. from the land of respondents 4 to 6. Further, by an order of the Government in G.O.No.1761, dated 25.10.1982, the acquisition authorities are forbidden from acquiring thope and agricultural lands. 18.The respondents have made their objections when subsequent proceedings were initiated under the TN Act 10/1999. Considering their objections, the State Government exempted their lands as being absolutely not necessary for the industrial park maintained by the petitioner company. Further reference was made to Section 6 of the Tamil Nadu Act 10/99, which is a special enactment, where it is clearly stated that before publishing the notification under Section 3(1), the Government will have to call upon the owner or other person interested in the land to show cause as to why the said lands should not be acquired. It was thereafter considering the cause and hearing the affected parties, a notification under Section 3(1) may be issued. Though the said provision requires mandatory public notice, the State Government had not issued any notice to respondents 4 to 6. 19.In the earlier proceedings, this court had directed a fresh enquiry to be conducted and to be completed within three months time. But respondents 1 to 3 have given a go-by to the earlier proceedings and for the reasons best known to them and the provisions of the Act 10/99 was resorted to. The acquisition of agricultural land for a private enterprise was not proper and the existing approach road sufficiently satisfies the petitioner company. Their attempt to bring in security concern is imaginary. It was also claimed that the petitioner company is motivated by profit for personal gain. They are more of real estate promoters than intended to establish a Special Economic Zone. Therefore, they sought for dismissal of the writ petition. 20.Mr.G.Masilamani, learned Senior Counsel leading for Mr.R.Bharathkumar appearing for petitioner submitted that the purpose for which acquisition was made was already set out in the acquisition proceedings under the Central Act. This Court set aside those proceedings only on the technical ground of limitation. Subsequently, a notification under Section 3(1) under the Tamil Nadu Act 10/99 was published in the Tamil Nadu Government gazette on 3.1.2007. It was thereafter, respondents 4 to 6 have sent representations dated 11.4.2008. The State Government received a https://hcservices.ecourts.gov.in/hcservices/ report from the District Collector in letters dated 30.10.2008 and 20.5.2009. The State Government after examining the recommendations of the District Collector decided to accept the request of respondents 4 to 6 and dropped the acquisition of land belonging to respondents 4 to 6. Further condition was also made that they should withdraw the related cases filed in the High Court. It is this order which is under challenge in the writ petition. In paragraphs 6 and 7 of the order, it was stated by the Government which is as follows: "6.The District Collector, Kancheepuram, in his letter third read above, has recommended that exemption from land acquisition may be given as requested by the petitioner considering the following:- a)0.68.0 hectare land in S.No.405/1B2B is a patta land, situated in East to National Highways and extended into West and North direction. There is no other patta lands in S.No.405 around 3 K.M. distance. b)The lands for which exemption is required are not contiguous and situated as small places not fit for project work. c)Requisition body (MIP) has requested these lands for approach road. However, the Requisition body is utilizing 100 feet road with the permission of Forest Department. The width of this road is 43 metre. Therefore, if exemptions is given to the above lands from acquisition the project plan will not be affected. 7.The District Collector, Kancheepuram, has also recommended that if exemption to the above lands are given from acquisition, the project plan will not be affected, since there is already a approach road to the developer company and the lands in question are surrounded by the Reserve Forests." 21.In this backdrop, the learned Senior Counsel for the petitioner had stated that dropping of acquisition proceedings was illegal. Principles of natural justice was not followed inasmuch as the petitioner company was not heard before dropping the proceedings. The public purpose for which acquisition made was already settled in the earlier acquisition proceedings made under the Central Act 1/1894. 22.The learned Senior Counsel placed reliance upon the following judgment of the Supreme Court in support of his contentions: a)M/s.Larsen and Toubro Ltd. Vs. State of Gujarat and others (AIR 1998 SC 1608); b)State Government Houseless Harijan Employees Association Vs. State of Karnataka and others (AIR 2001 SC 437); and https://hcservices.ecourts.gov.in/hcservices/ c)Rajinder Singh Bhatti and others Vs. State of Haryana and others (AIR 2009 SC 2232). It was for the proposition that an action of the State Government in withdrawing from land acquisition under Section 48 requires publication in the gazette. 23.In order to appreciate the rival contentions, it is necessary to extract the relevant provisions found in the Act 10/99. Section 4 reads as follows: "4.Land acquired to vest in Government free from all encumbrances.-(1)When a notice under sub- section (1) of section 3 is published in the Tamil Nadu Government Gazette, the land to which the said notice relates shall, on and from the date of such publication, vest absolutely in the Government free from all encumbrance: Provided that if before actual possession of such land is taken by, or on behalf of, the Government, it appears for the Government, that the land is no more required for the purpose of this Act, the Government may, by notice published in the Tamil Nadu Government Gazette, withdraw the land from acquisition. On the publication of such notice, the land shall revest with retrospective effect in the person from whom it was divested on the issue of order under sub-section (1) of section 3, subject to such encumbrances, if any, as may be subsisting at that time: Provided further that the owner and other persons interested shall be entitled to payment of an amount as determined in accordance with the provisions of section 7 for the damage, if any, suffered by them in consequence of the acquisition proceedings. (2)Where any land is vested in the Government under sub-section (1), the Government may, by order, direct any person who may be in possession of the land to surrender or deliver possession thereof to the Collector or any person duly authorised by him in this behalf within thirty days of the service of the order. (3)If any person refuses or fails to comply with an order made under sub-section (2), the Collector may take possession of the land, and may, for that purpose, use such force as may be necessary." (Emphasis added) 24.Therefore, a clear reading of the said provision will show that after notification under Section 3(1) of the State Act, the first proviso to Section 4(1) will show that if the State Government before taking actual possession of land is of the opinion that the land is no more required for the purpose of the https://hcservices.ecourts.gov.in/hcservices/ Act, then it can by notice published in the State Government Gazette withdraw the land from acquisition. On publication of such notice, the land will revest with retrospective effect to the person to whom it was divested on the issue of order under