Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 4060 (MAD)

K. Rakkianna Gounder v. Secretary, Government of Tamil Nadu

2013-11-29

M.M.SUNDRESH, SATISH K.AGNIHOTRI

body2013
JUDGMENT M.M. Sundresh, J. This writ appeal has been preferred by the appellants, who lost their challenge before the learned single Judge seeking to quash the acquisition proceedings initiated by respondents 1 and 2. 2. Facts in Brief: 2.1. In pursuant to the Board's Memo No.LA II-4/63268/85 dated 23.09.1985, the Superintending Engineer of the third respondent/Tamil Nadu Housing Board submitted a proposal for acquisition of the lands for a Housing Scheme as per the letter dated 06.02.1996. The proceedings originally initiated by respondents 1 and 2 under the Land Acquisition Act, 1894, were held to be bad by this Court. Taking note of the letter of the third respondent, dated 01.08.1998, and the letter of the District Revenue Officer, Salem, dated 31.05.1999 as well as the letter dated 24.08.1999 from the Special Commissioner and Commissioner of Land Acquisition, Chennai, administrative sanction was granted for the Neighbourhood Scheme by the first respondent. The records would reveal that the decision was taken with the final approval by the Honourable Minister on 18.03.2000. Thereafter, a Government Order, dated 29.03.2000, was passed by the first respondent in G.O.Ms.No.146, Housing and Urban Development (LA.VI(2)) Department, and the said Government order is reproduced here under: "Government of Tamil Nadu ABSTRACT Land Acquisition-Salem District-Omalur Taluk-Kottagoundampatty Village-Acquisition Land in S.No.25/5 etc., measuring 11.49.5 hectares for Salem Neighbourhood Scheme by Tamil Nadu Housing Board -Administrative sanction of the scheme -orders-issued. HOUSING & URBAN DEVELOPMENT (LA VI (2) DEPARTMENT G.O.Ms.No.146 Dated 29.3.2000 From the Tamilnadu Housing Board, letter No.LAII(4)/9120/96, dated 1.8.1998 From the District Revenue Officer, Salem, Letter No.107320/84 (B3), dated 31.5.99 addressed to the Special commissioner and Commissioner of Land Administration, Chennai. From the Special Commissioner and Commissioner of Land Administration, Chennai, letter No.H/24655/99, dated 24.08.1999. ORDER The Tamil Nadu Housing Board, in his letter first read above, has sent the proposal requesting for the acquisition of lands measuring 11.49.5 hectares in S.No.25/5 etc., at the estimate cost of Rs.36,00,544/- in Kottagoundampatty Village, Omalur Taluk, Salem District, for Housing Scheme under Salem Neighbourhood Scheme. The actual compensation payable under the Land Acquisition Act, 1894 (Central Act 1/1894), will be awarded at in the manner prescribed under the above said Act. The actual compensation payable under the Land Acquisition Act, 1894 (Central Act 1/1894), will be awarded at in the manner prescribed under the above said Act. The Government have examined the proposal of the Tamil Nadu Housing Board and accord administrative sanction of the scheme for the acquisition of 11.49.5 hectares in 25/5 etc., of Kottagoundampatty Village, Omalur Taluk, Salem District, as detailed in annexure to this order for the Tamil Nadu Housing Board for Housing purpose under Salem Neighbourhood Scheme. The entire expenditure for acquisition of the above lands including enhanced compensation, any other expenditure connected either directly or indirectly with the land acquisition will be met by the Tamil Nadu Housing Board. (BY ORDER OF THE GOVERNOR) AJAY BHATTACHARYA SECRETARY TO GOVERNMENT" 2.2. By the subsequent Government Order in G.O.Ms.No.147, Housing and Urban Development Department, dated 29.03.2000, the Government, viz., the first respondent, issued the Notification under Section 4(1) of the Land Acquisition Act, 1894. The petitioners made their objections during the enquiry under Section 5-A of the Land Acquisition Act, 1894. The objections were overruled and a Declaration under Section 6 of the Land Acquisition Act, 1894, was made in the Government Gazette on 16.05.2001 by the Housing and Urban Development Department. Challenging the said proceedings, the appellants filed W.P.No.10506 of 2001. The learned single Judge, by order dated 13.12.2012, dismissed the writ petition by holding that it is not necessary to get a prior approval before issuance of 4(1) Notification and that the decisions relied upon by the appellants are not applicable to the case on hand. Challenging the same, the present writ appeal has been filed. 3. Submissions of the Appellants:- 3.1. The learned Senior Counsel appearing for the appellants submitted that a prior approval, as required under Section 3(f)(6) of the Land Acquisition Act, 1894, is mandatory before the issuance of the Notification under Section 4(1) of the Land Acquisition Act, 1894. In the absence of such an approval, the acquisition proceedings are liable to be set aside as there is no public interest involved in the eye of law. The Government Order passed in G.O.Ms.No.146, Housing and Urban Development Department, cannot be construed as an approval to the scheme. Further, the first respondent/Government cannot initiate even a preliminary action without a prior approval as contemplated under the Act. The Government Order passed in G.O.Ms.No.146, Housing and Urban Development Department, cannot be construed as an approval to the scheme. Further, the first respondent/Government cannot initiate even a preliminary action without a prior approval as contemplated under the Act. There is no prior approval in the eye of law as the so-called approval order and the Government Order under Section 4(1) of the Act were issued on the very same date. The third respondent is a "local Authority" as defined under Section 158 of the Tamil Nadu Housing Board Act. A further submission has been made that the learned single Judge has committed an error in holding that no prior approval is required under the Land Acquisition Act, 1894, which is contrary to the law as laid down by the Honourable Apex Court. In support of his contention, the learned Senior Counsel has made reliance upon the following judgments: (1) SEMBANNA GOUNDER AND THREE OTHERS V. STATE OF TAMIL NADU, REP. BY THE SECRETARY, URBAN DEVELOPMENT, FORT. ST. GEORGE, MADRAS-9 AND TWO OTHERS ( 2001 (1) CTC 481 ); (ii) BANGALORE CITY CO-OPERATIVE HOUSING SOCIETY LTD., VS. STATE OF KARNATAKA AND OTHERS (2012 (2) MLJ 401(SC); (iii) B.ANJANAPPA AND OTHERS V. VYALIKAVAL HOUSE BUILDING CO-OPERATIVE SOCIETY LIMITED AND OTHERS (2012 (10) SCC 184); and (iii) RAGHBIR SINGH SEHRAWAT V. STATE OF HARYANA AND OTHERS ( 2012 (1) SCC 792 ); 4. Submissions of the Respondents:- The learned Special Government Pleader appearing on behalf of Respondents 1 and 2 and the learned Additional Advocate General appearing on behalf of the third respondent have submitted that even earlier a comprehensive scheme was prepared in the year 1990 itself. Prior to the issuance of Notification under Section 4(1) of the Act, the Scheme of the third respondent was approved by the first respondent. The third respondent is a Corporation owned and controlled by the State and therefore, Section 3 (cc) of the Land Acquisition Act is also applicable. In view of the same, Sections 3 (f)(vi) would govern the case as the scheme is meant for housing and therefore, no prior approval is necessary. This contention has been raised without prejudice to the scheme which has already been approved by the first respondent. As the Scheme has been duly approved prior to the Notification under Section 4(1) of the Act, there is no basis for the appeal. This contention has been raised without prejudice to the scheme which has already been approved by the first respondent. As the Scheme has been duly approved prior to the Notification under Section 4(1) of the Act, there is no basis for the appeal. Section 4(1) of the Act does not speak about the scheme. Even assuming that there is no such scheme, the same would not vitiate the proceedings. Section 158 of the Tamil Nadu Housing Board Act is not a bar to Section 3 of the Act. In support of their contentions, the following judgments are relied upon:- (i) BABU BARKYA THAKUR V. STATE OF BOMBAY AND OTHERS( 1961 (1) SCR 128 : AIR 1960 SC 1203 ); (ii) RATILAL SHAKARABHAI AND OTHERS V. THE STATE OF GUJARAT AND OTHERS ( 1970 (2) SCC 264 ); (iii) M/S FOMENTO RESORTS AND HOTELS LTD., V. GUSTAVO RANATO DA CRUZ PINTO AND OTHERS ( 1985 (2) SCC 152 ); (iv) COLLECTOR, ONGOLE AND ANOTHER V. NARRA VENKATESWARLU AND OTHERS (1996) 7 SCC 150 ); and (v) LARSEN & TOUBRO LTD. V. STATE OF GUJARAT AND OTHERS ( 1998 (4) SCC 387 ). 5. DISCUSSION:- 5.1. The issues to be decided in this appeal are :- (i) Whether there is a scheme approved by the first respondent; (ii) If so, is it in accordance with law; (iii) whether any prior approval is required before the issuance of notification under Section 4(1) of the Act or not; (iv) Whether the prior approval is mandatory or discretionary; and (v) Whether the Housing Board is a local authority or a Corporation under the Land Acquisition Act, 1894. 5.2. Section 3 of Tamil Nadu State Housing Board Act, 1961, deals with the "creation and incorporation of the Board" and it shall be a body corporate. Section 158 of the Tamil Nadu State Housing Board Act, 1961, describes the Housing Board to be a "local authority" as defined under the Central Act 1 of 1894. As per the said provision, the Tamil Nadu Housing Board is deemed to be a "local authority" for the purpose of the Land Acquisition Act, 1894. 5.3. A combined reading of the above said two provisions read with Section 3 (aa) and (cc) of the Land Acquisition Act, 1894, would lead no room for any other possible interpretation except to hold that the Tamil Nadu Housing Board is a local authority. 5.3. A combined reading of the above said two provisions read with Section 3 (aa) and (cc) of the Land Acquisition Act, 1894, would lead no room for any other possible interpretation except to hold that the Tamil Nadu Housing Board is a local authority. It is settled law that a Court of law has to provide a simple, natural and literal meaning to a provision of a statute. In this connection, it is apposite to refer the recent pronouncement of the Honourable Apex Court in LALITA KUMARI V. GOVERNMENT OF UTTERPRADESH AND OTHERS (2013 (6) CTC 353), which is here under: "37) At this juncture, it is apposite to refer to the following observations of this Court in M/s Hiralal Rattanlal (supra) which are as under: “22...In construing a statutory provision, the first and the foremost rule of construction is the literary construction. All that we have to see at the very outset is what does that provision say. If the provision is unambiguous and if from that provision, the legislative intent is clear, we need not call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when the legislative intention is not clear” The above decision was followed by this Court in B. Premanand (supra) and after referring the abovesaid observations in the case of Hiralal Rattanlal (supra), this Court observed as under: “9. It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation, etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule, vide Swedish Match AB v. SEBI (2004) 11 SCC 641 . The language of Section 154(1), therefore, admits of no other construction but the literal construction." 5.4. Section 158 of the Act makes it very clear that the Board shall be deemed to be a local authority for the purposes of the Land Acquisition Act, 1894, and the Local Authorities Loans Act, 1914. The language of Section 154(1), therefore, admits of no other construction but the literal construction." 5.4. Section 158 of the Act makes it very clear that the Board shall be deemed to be a local authority for the purposes of the Land Acquisition Act, 1894, and the Local Authorities Loans Act, 1914. Section 3 of the Act merely deals with the "creation and incorporation of the Board". It comes under Chapter II which deals with the Constitution of the Board. Therefore, we have no difficulty in holding that the third respondent would indeed be a local authority under the Land Acquisition Act, 1894. Any other attempt to interpret would make Section 158 redundant and otiose. It is also not the case of the respondents themselves that the third respondent is not a local authority under the Land Acquisition Act, 1894. Even though we are of the view that the submissions of the learned Additional Advocate General is contrary to the stand of the Government, in view of the persuasive argument, we are inclined to go into the said issue. 5.5. With reference to the issue of approval, we have perused the entire records produced by the respondents including the final approval of the Honourable Minister dated 18.03.2000. The first respondent has passed an order by granting administrative sanction after taking note of the various communications sent by the other authorities as detailed earlier. Under law there is no prescribed format indicating the manner in which an approval has to be given. The first respondent has taken into consideration of the materials placed before it. The acquisition proceedings would start under the Act, only with the issuance of the Notification under Section 4(1) of the Act. Therefore, it cannot be stated that no preparation can be made prior to the Notification under Section 4(1) of the Act without the approval of the scheme. The object of the Scheme is to impute a public purpose into a Notification issued under Section 4(1) of the Act. Once a scheme is approved by the Government, it partakes the character of a public purpose, until the contrary is proved. Therefore, we are not able to accept the contention of the learned Senior Counsel appearing for the appellants that there is no approval and even assuming that there is one, the same is not in accordance with law. Once a scheme is approved by the Government, it partakes the character of a public purpose, until the contrary is proved. Therefore, we are not able to accept the contention of the learned Senior Counsel appearing for the appellants that there is no approval and even assuming that there is one, the same is not in accordance with law. The records also would reveal that the Government Order for approval has been passed earlier followed by the Notification under Section 4(1) of the Act. As submitted by the learned counsels appearing for the respondents, even earlier a scheme had to be formulated for a larger extent, long time ago. It is not the case of the appellants that the respondents have acted arbitrarily and in any case, we do not have any material in support of it. Therefore, we are of the view that the approval granted for the scheme by the first respondent is in accordance with law. 5.6. We are of the view that the decisions relied upon by the learned counsels appearing for both sides are not applicable to the case on hand. There is no difficulty in appreciating the law as laid down by the Honourable Apex Court in H.M.T. HOUSE BUILDING CO-OPERATIVE SOCIETY V. M.VENKATASWAMAPPA AND OTHERS ( AIR 1995 SC 2253 ) and BANGALORE CITY CO-OPERATIVE HOUSING SOCIETY LTD. VS. STATE OF KARNATAKA AND OTHERS (2012 (2) MLJ 401(SC) that prior to the issuance of Notification, there has to be an approval of the scheme by the Government concerned. As stated above, when such an approval is very much available, the decisions relied upon by the learned counsel appearing for the appellants have no application to the case on hand. 5.7. We are also of the view that the said decisions cannot be relied upon to hold that even a preliminary assessment cannot be done prior to the Notification under Section 4(1) of the Act without the scheme having been approved. Any action taken prior to the same would not be governed by the enactment. Even though we find that the reasons assigned by the learned single Judge holding that no prior approval is required before passing a preliminary Notification under Section 4(1) of the Act cannot be sustained, in the same line, we are of the view that this issue is also not necessary for deciding the appeal. Even though we find that the reasons assigned by the learned single Judge holding that no prior approval is required before passing a preliminary Notification under Section 4(1) of the Act cannot be sustained, in the same line, we are of the view that this issue is also not necessary for deciding the appeal. The said finding would not change the result of the case in view of our discussion on the administrative sanction granted to the scheme by the first respondent prior to the issuance of the Notification under Section 4(1) of the Act. 5.8. We are also not convinced with the arguments of the learned Additional Advocate General that the prior approval is not mandatory since it is settled law as held in DEVINDER SINGH AND OTHYERS V. STATE OF PUNJAB AND OTHERS (2008) 1 SCC 728 ), Land Acquisition Act, 1894, is a expropriatory statute and is a provision regarding acquisition are mandatory and also the said issue is already covered by the judgment of the Honourable Apex Court referred supra. Accordingly, the writ appeal fails and the same is dismissed. No costs. Consequently connected miscellaneous petitions are also dismissed.