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2012 DIGILAW 1568 (MAD)

Syed Samiullah v. Secretary to Government

2012-03-29

B.RAJENDRAN

body2012
Judgment 1. The petitioner has come forward with this writ petition challenging the publication of the notification under Section 6 of the Land Acquisition Act, hereinafter called as the Act, by which the petitioner's property was sought to be acquired by the respondents for establishment of Metro Rail Project. i) The petitioner would contend that the property situate in Door No.569, Anna Salai, Teynampet, Chennai - 600 018 is his ancestral property. According to the petitioner, there was a partition suit filed by his elder brother in C.S. No. 225 of 1981 before this Court in which he was impleaded as first defendant and his sisters and other legal heirs were arrayed as defendants 2 to 9 in the said suit. The suit was ultimately decreed on 23.04.1984 by allotting 10/44 share to the petitioner in his mother's property and thereafter a final decree application was filed in which an advocate commissioner was appointed. But till date the final decree has not been passed. Subsequently, by order dated 27.06.2008 passed by this Court, the petitioner was given pre-emptive right to purchase the shares of the plaintiffs, which were sold to third party during the pendency of the suit. While so, as against the preliminary decree passed in the suit, four Original Side appeals have been filed by a third party, who was arrayed as 10th defendant in the suit and another four original side appeals have been filed by the petitioner and all the eight appeals are pending as on date. ii) According to the petitioner, he is residing in a portion of the property which is sought to be acquired by the respondents. While so, on 18.02.2011, the officials of the respondents have invaded into his property unauthorisedly, attempted to take measurements and also to take over possession of the property, which according to him is unauthorised. There was no notification under Section 4 (1) of the Act issued proposing to acquire the lands. Later on, the petitioner came to know that the Chennai Metro Rail Limited is attempting to acquire the property belonged to him. Even his application dated 17.05.2011 filed under the Right to Information Act to the concerned authorities have not been responded to. There was no notification under Section 4 (1) of the Act issued proposing to acquire the lands. Later on, the petitioner came to know that the Chennai Metro Rail Limited is attempting to acquire the property belonged to him. Even his application dated 17.05.2011 filed under the Right to Information Act to the concerned authorities have not been responded to. Therefore, the petitioner has filed W.P. No. 14592 of 2011 before this Court and this Court by order dated 24.06.2011 issued direction to the respondents therein to consider the petitioner's application on merits. Only thereafter, did the petitioner came to know that a notification under Section 4 (1) of the Act was published by the respondents in one issue of English Daily Deccan Chronicle dated 21.07.2011 in which it was mentioned that the lands, including the lands of the petitioner, are proposed to be acquired by invoking the emergency clause provided under Section 17 of the said Act. iii) The main grievance of the petitioner is that invocation of Section 17 of the Act is unwarranted and even in case of urgency, the respondents ought to have proceeded further by giving 15 days prior notice under Section 9 of the Act by publishing a notice expressing the intention to take possession of the property and to call for objections from the interested person to appear before the authority concerned. The notification under Section 4 (1) of the Act do not disclose the extent of the proposed area of the land sought to be acquired from the petitioner and there is no need or necessity to invoke the urgency clause in the Act. The objection of the petitioner has not been heard and invocation of such urgency clause deprived the petitioner of his legal pre-emptive right to purchase the property. There is no real urgency and in such event, the enquiry under Section 5-A of the Act ought not to have been dispensed with by the respondents. Mere public purpose does not in any way automatically mean that there is a real urgency warranting invocation of Section 17 of the Act. Contrary to the guidelines of the Chennai Metro Rail Limited notifying that they will invoke the power under Section 17(2) of the Act, the invocation of power under Section 17 (1) and 17 (4) of the Act are not proper. Therefore, the petitioner prayed for allowing the writ petition. 2. Contrary to the guidelines of the Chennai Metro Rail Limited notifying that they will invoke the power under Section 17(2) of the Act, the invocation of power under Section 17 (1) and 17 (4) of the Act are not proper. Therefore, the petitioner prayed for allowing the writ petition. 2. The second respondent/Special Tahsildar filed a counter affidavit contending interalia that the lands are urgently required for establishing Metro Rail Project. The project itself has to be implemented within a tight time schedule. The land acquisition process, therefore, has to be completed at the earliest point of time to avoid time and costs over run. In this context, the Government issued G.O. Ms. No.116 and 157, Planning, Development and Special Initiatives (SI) Department dated 14.07.2011 and 18.08.2011 respectively by which the respondents have been authorised to invoke the urgency clause in the Land Acquisition Act for setting up the Chennai Metro Rail Project. As the project is a time bound project, any delay in carrying out such vital project will affect the contractual obligations, escalation of project costs besides affecting the general public to have a safe and quick means of public transport. The project has been estimated to costs more than Rs.100 crores and any delay will cause huge loss to the exchequer and the public interest would be defeated. According to the second respondent, proposals have been forwarded by the Managing Director, Chennai Metro Rail Limited to the Collector, Chennai for according administrative sanction for acquisition of 806.39 square meters or 8680 square feet of patta lands for implementation of Chennai Metro Rail Project, which in turn was forwarded to the Commissioner of Land Administration. The Commissioner for Land Administration forwarded the said proposal with his recommendation for acquisition of private patta lands under the urgency provisions in Section 17 of the Act to the Government. The Government after careful consideration issued G.O. Ms. No.19, Planning, Development and Special Initiatives (SI) Department dated 25.03.2009 according adminitrative sanction for acquisition of the lands. Subsequently, the notification under Section 4 (1) of the Act was issued on 14.07.2011 invoking the provisions of Section 17 (1) and 17 (4) of the Act and expiry of 15 days thereof, possession can be taken. The notification under Section 17 (1) and (4) of the Act was published on 21.07.2011 in the newspapers. Subsequently, the notification under Section 4 (1) of the Act was issued on 14.07.2011 invoking the provisions of Section 17 (1) and 17 (4) of the Act and expiry of 15 days thereof, possession can be taken. The notification under Section 17 (1) and (4) of the Act was published on 21.07.2011 in the newspapers. The draft declaration under Section 6 (1) of the Act was published in G.O. Ms. No.157 dated 18.08.2001. The notification thereon was published on 25.08.2011 in accordance with the provisions of the Act. The dispensation of enquiry under Section 5-A of the Act was due to urgency. The enquiry under Section 9 (3) of the Act read with Section 10 of the Act (Central Act I of 1894) in Form-VII has been issued on 31.01.2012 indicating that the petitioner will be given opportunity of hearing on 16.02.2012. Therefore, according to the second respondent, they have complied with all the mandatory provisions of the Act prior to acquisition of the land and therefore, interference of this Court is not warranted. 3. The third respondent has filed a separate counter contending that the urgency clause was invoked for establishment of one of the prestigious project namely Metro Rail Project with an intention to arrest the severe traffic problem witnessed in the City of Chennai. The Chennai Metro Rail Limited is the requisitioning body. Since the Chennai Metro Rail project has to be implemented within a tight time schedule, based on the request made by the Managing Director of Chennai Metro Rail Limited, the District Collector forwarded proposals to the Commissioner of Land Administration for according administrative sanction, who in turn forwarded the proposals to the Government. The Government has accorded administrative sanction for implementation of the project by invoking the urgency clause under Section 17 of the Act. Therefore, by invoking the urgency clause, the enquiry under Section 5-A of the Act was dispensed with. In fact, the petitioner was given an opportunity of personal hearing before the Chief General Manager (Construction) on 27.10.2011 and 04.11.2011, but he did not turn up. The lands sought to be acquired from the petitioner is essentially required for an entrance at the end of Metro Station, which is a commuter facility and also a technical statutory requirement as per access and fire safety regulations. The lands sought to be acquired from the petitioner is essentially required for an entrance at the end of Metro Station, which is a commuter facility and also a technical statutory requirement as per access and fire safety regulations. Further, in course of design review, the land take within petitioner's property has now been reduced from 797 sq.m. to 231 sq.m. and orientation of land take has also been changed and made parallel to Anna Salai with adequate access to remaining property of the petitioner. The third respondent or their men never trespassed into the property of the petitioner on 23.02.2011 as alleged. In fact, the writ petition filed by the petitioner was disposed of by this Court on 24.06.2011 on the basis of the undertaking given on behalf of the respondents that any proceeding initiated against the petitioner will be in accordance with law. In any event, the respondents have followed all the mandatory provisions before acquiring the lands of the petitioner and therefore, the writ petition is liable to be dismissed. 4. The petitioner has filed a reply to the counter affidavits filed by the second and third respondent. In the reply affidavit, the petitioner had made repetitions of the averments made in the affidavit filed in support of the writ petition, proceedings relating to the earlier writ petition filed before this Court and also denied the various averments made by the respondents 2 and 3 in their counter. In the reply the petitioner would only contend that he has made out a prima facie case for granting the relief sought for in this writ petition. It was also contended that the first respondent/Government of Tamil Nadu has not filed a counter supplementing the averments made by the respondents 2 and 3 in their counter. According to the petitioner, the reasons for invocation of emergency provisions of the Act to dispense with the enquiry under Section 5A of the Act is wholly unconstitutional and arbitrary. The entire acquisition proceedings are vitiated and it is against his legal pre-emptive right over the property in question. According to the petitioner, the reasons for invocation of emergency provisions of the Act to dispense with the enquiry under Section 5A of the Act is wholly unconstitutional and arbitrary. The entire acquisition proceedings are vitiated and it is against his legal pre-emptive right over the property in question. In this context, the petitioner also relied on the decision of the Honourable Supreme Court reported in (Radhy Shyam (Dead) through Lrs and others vs. State of Uttar Pradesh and others) (2011) 5 SCC 553 to contend that the invocation of emergency clause and dispensation of enquiry under Section 5A of the Act are without any basis. Therefore, according to the petitioner, the acquisition proceedings have thwarted his legal right to get preemptive rights over the property on the basis of the orders passed by this Court. 5. I heard the counsel for both sides and by their consent, the writ petition itself is taken up for final disposal. 6. The petitioner would contend that he is the owner of the lands, which is sought to be acquired by the respondents for establishment of Metro Rail Project in Chennai City. The petitioner challenges the validity of the acquisition proceedings on two grounds. The first ground being the respondents have sought to invoke the urgency clause in Section 17 (1) and (4) of the Act and dispensed with the enquiry under Section 5-A of the Act without any real urgency, need or necessity. According to the petitioner, the project commenced one year back and therefore invoking the urgency provisions and dispensing with the valuable right of the petitioner to participate in the enquiry under Section 5-A of the Act is unwarranted. The second main ground projected by the petitioner is that had he been given an opportunity to participate in the enquiry under Section 5-A of the Act, he would have submitted his detailed objection for consideration of the respondents. Inasmuch as the enquiry under Section 5-A of the Act having been dispensed with, he was left without any opportunity to putforth his defence. Inasmuch as the enquiry under Section 5-A of the Act having been dispensed with, he was left without any opportunity to putforth his defence. It was also pleaded by the petitioner that already there is a partition suit pending in respect of the property in which there was an order passed by this Court granting pre-emptive right in his favour to purchase a portion of the property already sold to a third party and by virtue of the acquisition proceedings, his pre-emptive right has been lost. 7. The contentions urged by the petitioner does not stand to scrutiny at all for the simple reason that the project is being implemented by the respondents in the interest of general public at large and to ensure safe and quick transportation system. The project involves several crores of ruppes funded by the Central as well as State Government to ensure quicker implementation of the project to ease traffic congestion witnessed in the city. The respondents also considered that any delay in implementing the project will result in huge loss to the exchequer besides that it will cause inconvenience to the public at large. Therefore, a time schedule was fixed to implement the project. In order to achieve the above objects, the Government thought it fit to invoke the urgency clause provided under Section 17 of the Act and the Government also accorded administrative sanction for the same so that the project could be implemented as planned. After the first respondent accorded administrative sanction for invoking urgency clause under Section 17 and also to acquire the patta lands for implementation of the project, the notification under Section 4 (1) of the Act was issued on 14.07.2011. As far as the acquisition of the lands which are under occupation of the petitioner is concerned, they are required for an entrance at the end of Metro Station, which is a commuter facility and also a technical statutory requirement as per access and fire safety regulations. Therefore, originally, land having an extent of 797 sq.m. was sought to be acquired, but subsequently, it was decided that vacant lands to the extent of 231 sq.m. alone is sufficient. This was also admitted by the third respondent in the counter. The third respondent also produced plan/sketch to show that the original proposal to acquire 797 sq.m. from the petitioner was reduced to 231 sq.m. alone. This was also admitted by the third respondent in the counter. The third respondent also produced plan/sketch to show that the original proposal to acquire 797 sq.m. from the petitioner was reduced to 231 sq.m. alone. In the plan, it was specifically stated as follows:- "Property Name Area (Sq.M)Land Type SyedSamiullah (Permanent Structure above Ground) 101 Private SyedSamiullah (Permanent Structure above Ground) 72 Private SyedSamiullah (temporary) 58 Private SyedSamiullah - Total Area 231 8. Therefore, it is clear that the proposal to acquire 797 sq.m. from the petitioner was reduced to 231 sq.m. and due to such acquisition of land, adequate access is provided to the petitioner's remaining property to reach Anna Salai. 9. With this background, when we consider whether the petitioner interest over the property, especially whose small area of vacant land is sought to be acquired, is paramount when compared to the public requirement to establish the Metro Rail Project by the respondents. According to the respondents, they are going to dug upto 45 feet of land from the ground level to form a tunnel and the whole process is going to involve huge amount, men and machine power. The project also got to be implemented within a time schedule specified by the State Government. Considering all these factors, the Government thought it fit to accord administration sanction to invoke the urgency clause under Section 17 of the Act which was rightly invoked by the respondent. While so, the grievance of the petitioner that his right of premption will be lost by reason of the acquisition proceedings cannot be accepted. Moreover, the petitioner's right emenate from a preliminary decree passed by this Court in the suit filed by his elder brother and it is the subject matter of challenge before the Division Bench of this Court in Original Side Appeals. The right of the petitioner therefore has not been concluded and it is pending before this Court in the Original Side Appeals filed at the instance of the petitioner and 10th defendant in the suit. Therefore, it cannot be considered that the right of the petitioner to get pre-emptive right has been lost. As on date, the petitioner has no right of ownership over the property which the respondents have proposed to acquire. Therefore, it is premature on the part of the petitioner to claim any right over the property in question. 10. Therefore, it cannot be considered that the right of the petitioner to get pre-emptive right has been lost. As on date, the petitioner has no right of ownership over the property which the respondents have proposed to acquire. Therefore, it is premature on the part of the petitioner to claim any right over the property in question. 10. The government has accorded administrative sanction considering the urgency involved in completion of the project within a stipulated time. The Project is being funded by the Government of India as well as the State Government besides borrowing funds from Japan International Co-ordination Agency. While so, the State Government is justified in according administrative sanction to invoke the urgency clause in Section 17 of the Act and also to dispense with the enquiry under Section 5-A of the Act. 11. The learned counsel for the petitioner relied on the decision of the Honourable Supreme Court reported in (Radhy Shyam (Dead) through Lrs and others vs. State of Uttar Pradesh and others) (2011) 5 SCC 553 to contend that in the absence of any indication that industrial units were intended to be established on acquired land by State Government itself or through its agencies/instrumentalities, invocation of Section 17 (1) was only to cater to private interest and not public purpose. Relying on the aforesaid decision, the learned counsel for the petitioner would contend that in the present case, there was a delay in commencement of the project as well as the issuance of the notification under Section 4 (1) of the Act and therefore, dispensing with the enquiry under Section 5-A of the Act is unnecessary. 12. In the decision relied on by the learned counsel for the petitioner mentioned supra, the Honourable Supreme Court found that there was no real and substantive urgency warranting invocation of urgency clause much less urgency warranting dispensing with enquiry under Section 5-A of the Act since there was a long time gap of one year and three months between receipt of land acquisition proposal from Development Authority and issuance of notification in question. This decision will not be applicable to the facts of the present case. In the present case, a proposal to establish Metro Rail System was mooted which involves dugging of tunnel 35 meters below ground level and for establishment of a two-tier transport system. This decision will not be applicable to the facts of the present case. In the present case, a proposal to establish Metro Rail System was mooted which involves dugging of tunnel 35 meters below ground level and for establishment of a two-tier transport system. Once such a proposal was made by the third and fourth respondents, it was immediately forwarded by the District Collector to the Commissioner of Land Administration without any delay, who in turn forwarded it to the Government. The Government also, without causing any delay had immediately issued G.O. Ms. No.116 and 157, Planning, Development and Special Initiatives (SI) Department dated 14.07.2011 and 18.08.2011 respectively by which the respondents have been authorised to invoke the urgency clause in the Land Acquisition Act for setting up the Chennai Metro Rail Project and also to acquire private lands for the purpose of implementation of the project. Immediately, the notification under Section 4(1) of the Land Acquisition Act was published in the local dailies on 20.07.2011. The draft declaration under Section 6 was thereafter issued on 18.08.2011 in G.O.Ms. No.157 dated 18.08.2011 and the same was published on 25.08.2011, which is the subject matter of challenge in this writ petition. Thus, it could be seen that the respondents are justified in invoking the urgency clause in Section 17 of the Act in order to ensure that the project is completed without any delay. Further, it is brought to the notice of this Court that the respondents have also taken possession of the lands from the petitioner. 13. The learned counsel for the respondents brought to the notice of this Court the order passed by this Court on 24.10.2011 in identical case in W.P. No. 20769 of 2010 wherein a learned Judge of this Court held that a 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 and this was also taken note of while publishing the notification under Section 4 of the Act. In para Nos. 25, 26, 28, 29, 30, 31 and 32, it was held as follows:- "25.) On consideration of the matter, I find no force in the contention raised by the learned counsel for the petitioner. In para Nos. 25, 26, 28, 29, 30, 31 and 32, it was held as follows:- "25.) On consideration of the matter, I find no force in the contention raised by the learned counsel for the petitioner. It would be seen that mere fact that notification in respect of acquisition of land for housing scheme was quashed on an earlier occasion cannot be a ground, when notification issued subsequently for acquisition of land is for the public purpose. Admittedly, land of the petitioner is not being acquired for housing project, in violation of orders of the Hon'ble Supreme Court, but for the Chennai Metro Rail Project which is a public purpose. It is not in dispute that setting up of Chennai Metro rail project is a public purpose by invoking the provisions of land acquisition Act. 26.) The reading of the filed produced by Advocate General would show that there was material on record on basis of opinion was formed by the State Government before invoking provision under Sec.17, i.e., escalation of price of the project, and the urgent need for setting up of the Project at the earliest. 27.) The judgments relied upon by the learned counsel for the petitioner therefore have no application to the present case. The judgments on which reliance has been placed by the learned Senior counsel for the petitioner have only laid down that the Government has to form subjective opinion on the material before it, before invoking urgency provision which cannot be done mechanically. As already observed in this case the Government after due consideration, took a decision to invoke urgency clause, to dispense with enquiry under section 5A of the Act. 28.) As observed above, note file placed on record would show, that in fact the matter was considered in detail, and it was keeping view of the project that Sec.17 was invoked. 29.) The Government therefore before invoking urgency provision, had satisfied itself on material before it, to invoke the urgency provision under Sec.17 of the Act. 30.) The contention of the learned Senior counsel for the petitioner that in view of 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. SCW 5152), it was necessary for the Govt. to independently form an opinion for dispensation of enquiry under Sec.5-A also, cannot sustained. 30.) The contention of the learned Senior counsel for the petitioner that in view of 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. SCW 5152), it was necessary for the Govt. to independently form an opinion for dispensation of enquiry under Sec.5-A also, cannot sustained. 31.) The reading of the judgment would show that the Hon'ble Supreme Court laid down that there should be material before the Court to justify the dispensation of enquiry under Sec.5-A and not that two separate opinions are required to be formed. The interpretation to the judgment by learned Senior counsel would defeat the very object provision of Sec.17, as the urgency provisions are invoked with an object to dispense with enquiry under section 5A of the land acquisition Act. The reading of the file produced before this Court shows that there was material before the Court to form an opinion to invoke urgency provisions and dispense with enquiry under section 5A of the Act. 32.) As already observed above, sufficient material was available on record for justifying the Government to form an opinion to invoke the urgent provision." 14. This decision was rendered by this Court after perusing the original files relating to the acquisition and held that the Government is justified in invoking the urgency clause in Section 17 of the Act. 15. The aforesaid decision of this Court was also followed in the subequent order passed by this Court on 01.03.2012 in W.P. No. 16277 of 2011 wherein it was held that once it is not shown that there is any prejudice caused to the petitioners, and the right of acquisition by invoking urgency provisions for Metro Rail Projects already stands upheld and further keeping in view the fact, that award was passed prior to filing of this writ petition, the petitioners do not have locus standi to challenge the acquisition at this stage. Further, this Court found that even though the notification under Section 4 (1) of the Act was published in the name of a dead person, when the revenue records stood in the name of the person who is no more and it was not changed or altered by his legal heirs, that by itself will not vitiate the acquisition proceedings to acquire the lands of the petitioners. 16. 16. In any view of the matter, in the present case, the Government after careful consideration has accorded administration sanction to invoke the emergency clause under Section 17 of the Act to acquire patta lands for establishment of the Metro Rail Project taking into consideration the huge costs involved in implementation of the project, the cost escalation thereof and the convenience of the general public at large to ease the traffic congestion. Therefore, I hold that the Government is justified in invoking the urgency clause under Section 17 of the Act and I do not find any perversity or illegality in dispensing with the enquiry under Section 5A of the Act. Consequently, I do not find any reason to interfere with the order impugned in this writ petition. 17. In the result, the writ petition is devoid of merits, liable to be dismissed and accordingly it is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.