BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON: 01.09.2022

PRONOUNCED ON: 23.09.2022

CORAM

THE HONOURABLE MR.JUSTICE S.S.SUNDAR and

THE HONOURABLE MRS.JUSTICE S.SRIMATHY

W.A(MD)Nos.1016 to 1018 of 2021 and

C.M.P.(MD)Nos.4594, 4596 and 4597 of 2021 and

W.P.(MD)Nos.16902, 16908, 16913, 16920, 17067 and 17687 of 2020 and

W.M.P.(MD)Nos.14122, 14123, 14126, 14132, 14133, 14135, 14143,

14144, 14145, 14153, 14154, 14155, 14260, 14767, 14769 and 14770 of

2020

W.A(MD)No.1016 of 2021:-

1.The Principal Secretary to Government,

Public (Military) Department,

St.George Fort, Secretariat, Chennai.

2.The Commissioner of Land Administration,    Chennai.

3.The District Collector,

Thanjavur District, Thanjavur.

4.The Member Secretary,    The Local Planning Authority,    Thanjavur.

5.The Block Development Officer,    Village Panchayat,

Inathukanpatti Village Panchayat,    Thanjavur.

6.The Public Information Officer /    P.A.to District Collector (General),    Thanjavur.

7.The Public Information Officer / P.A.to Revenue Divisional Officer,
Thanjavur. Vs. 1.K.Johnson	… Appellants
2.R.Muthalagan	… Respondents

(R2 was impleaded vide order of this Court, dated 18.08.2022, in C.M.P(MD)Nos.6382, 6405 and 6407 of 2022)

Prayer: Writ Appeal filed under Clause 15 of the Letter Patent to set aside the order of this Court, dated 14.06.2019 made in W.P(MD)No.9070 of 2018.

For Appellants             :Mr.R.Baskar

Additional Advocate General assisted by Mr.S.P.Maharajan

Special Government Pleader

For R1 :Mr.T.S.Mohamed Mohideen For R2 :Mr.S.Venkatesan

***

COMMON JUDGMENT

(Judgment of the Court was delivered by S.S.SUNDAR, J.)

The issue to be decided is about the validity, legality and

constitutionality of the proposal to initiate acquisition by invoking the urgency clause under Section 40 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013) (Hereinafter referred to as “the Act”).

Brief facts that are necessary for the disposal of these cases are

as follows:

Writ Appeals:-

2.The Writ Petitioners/respondents in these Writ Appeals are

owners of small extent of lands out of an extent of 7.28.50 Hectares, in respect of which, the first appellant has issued G.O.Ms.No.148, Public (Military), Department, dated 23.02.2018, insofar as the acquisition in respect of the Writ Petitioners’ land is concerned.  As per the said Government Order, the acquisition was proposed for re-habilitation package for the displaced Inayathukanpatti villagers invoking urgency provisions of the Act.

3.It is the case of the Writ Petitioners that the Public Information Officer/Personal Assistant to the District Collector, Tanjore, forwarded an application submitted by an individual to the Deputy

Tahsildar seeking an information whether the land in S.Nos.4 and 5 in Inayathukanpatti village in Tanjore District is under any acquisition for the expansion of airport station and airport run way.  It is informed by the seventh appellant that no land in S.Nos.4 and 5 of Inayathukanpatti village is under any acquisition.  It was, thereafter, a few layouts were approved and the Writ Petitioners and two others have also purchased the plots in the approved layout.  It was thereafter, by the impugned Government Order, an extent of 7.28.5 Hectares of land is proposed to be acquired for re-habilitation package for Inayathukanpatti villagers in Tanjore District by invoking the urgency clause.

4.It is in the course of proceedings, the lands of the Writ Petitioners are sought to be acquired to accommodate the people, who lost their lands or displaced, while acquiring lands for expansion of Tanjore Airport.  By referring to the terms of the impugned Government Order, the respective Writ Petitioners have raised several grounds, which are as follows:

(a)The impugned Government Order is arbitrary, unsustainable

and against the principles of natural justice.

(b)The impugned Government Order depriving the opportunity

to the Writ Petitioners to raise their objections to the acquisition in terms of Section 15 of the Act is unconstitutional, as there is no urgency and there is no legitimate purpose or object in invoking the urgency clause. The individual land owners have purchased the housing plots with the fond hope of constructing a residential house and that such developed lands are sought to be acquired to re-habilitate the persons, who have lost their lands in previous acquisition proceedings initiated for Airforce station.

(c)Having regard to purpose of acquisition, as indicated in the

impugned Government Order, which would result in depriving the rights of more numbers of plot owners, is nothing but a colourable exercise of power.  Section 40 of the Act does not contemplate invoking of urgency clause for re-habilitating the persons, who have lost their lands in prior acquisition for a public purpose.

5.The appellants 1 to 3 and 5 to 7 filed a detailed counter affidavit pointing out that acquisition of lands proposed for rehabilitation, if proceeded under normal course will take more time and that therefore, there is real urgency. The counter affidavit was to the effect that the beneficiaries of the proposed acquisition have not vacated the place from the lands, which were acquired earlier and that the present acquisition is in the best interest of security and aerospace safety.  In the counter affidavit, it is stated that the District Collector,

Tanjore, vide letter, dated 26.06.2015 sent a proposal for administrative sanction for acquisition of lands for the purpose of extension of Air Fields at Air Force Station and for acquisition of an extent of 7.28.50 hectares of dry lands for re-habilitation package for Inayathukanpatti villagers under urgency clause provisions of Sub Sections 1 to 5 of Section 40 of the Act. It is further stated that the Additional Chief Secretary and Commissioner of Land Administration forwarded the proposal by proceedings, dated 27.08.2015.  It is admitted that an extent of 7.28.50 hectares of lands are required for re-habilitation of land losers, whose lands were acquired long back.  The classification of the lands, which are sought to be acquired out of the total extent of 7.28.50 hectares, are Ryotwari patta lands comprised in various sub divisions of S.Nos.4 and 5 in Inayathukanpatti village.  The particulars given in the counter affidavit itself would show that the proposal for acquiring the lands for a rehabilitation package for Inayathukanpatti villagers was pending atleast from the year 2015.

6.All the Writ Petitions were heard together by a learned Single Judge and disposed of by a common order.  The learned Single Judge, after considering the grievance of the Writ Petitioners as well as the contentions raised by the respondents in the Writ Petitions, allowed the Writ Petitions by quashing the impugned Government Order in G.O.

(Ms).No.148, Public (Military), Department, dated 23.02.2018 passed by the first appellant with a direction to release the lands of the Writ Petitioners from the acquisition proceedings. The learned Single Judge observed that the acquisition of 7.28.50 hectares is not for any defence purpose and that the lands sought to be acquired from the petitioners forms part of an approved layout and the purchasers of plots are middle class people and that some of them might have invested their life time savings.

7.The present Writ Appeals are directed against the common

order passed by the learned Single Judge of this Court.

8.Pending the Writ Appeals, few more Writ Petitions were also

filed by different sets of petitioners for similar relief, which was granted in the earlier Writ Petitions filed by similarly placed persons.

9.The poposed acquisition in the present case will deprive the

writ petitioners of their property of the Writ Petitioners without even an opportunity of being heard by following normal procedure prescribed under the Act.  The acquisition is for the purpose of re-habilitating another sets of people, who have lost their lands by virtue of previous acquisition proceedings for a purpose in relation to Airforce station.

10.The petitioners in most of the Writ Petitions have pointed out

the availability of sufficient alternative lands and a few of them are Government poramboke lands.  In normal circumstances, the appellants in the Writ Appeals would certainly consider the availability of alternative sites especially when the officials of Government can avoid the payment of additional 75% of market value, if they proceed to acquire private lands.  The acquisition is, therefore, not only unconstitutional, but also against the interest of state.  This Court find that the proposal for acquisition of lands for re-habilitation was pending for a long time and the proposal was forwarded even in the year 2015.  When the Government has slept over for more than three years to decide whether the land can be acquired or not, they cannot wake up and proceed to acquire the lands by invoking urgency clause dispensing with the preliminary enquiry to the prejudice of the Writ Petitioners.  Section 40 of Land Acquisition Act reads as follows:

“40. Special powers in case of urgency to acquire land

in certain cases.–(1) In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of thirty days from the publication of the notice mentioned in section 21, take possession of any land needed for a public purpose and such land shall thereupon vest absolutely in the Government, free from all encumbrances.

• The powers of the appropriate Government under

sub-section (1) shall be restricted to the minimum area required for the defence of India or national security or for any emergencies arising out of natural calamities or any other emergency with the approval of Parliament:

Provided that the Collector shall not take possession of

any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours notice of his intention to do so, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience.

• Before taking possession of any land under sub-

section (1) or sub-section (2), the Collector shall tender payment of eighty per cent. of the compensation for such land as estimated by him to the person interested entitled thereto.

• In the case of any land to which, in the opinion of

the appropriate Government, the provisions of sub-section (1), subsection (2) or sub-section (3) are applicable, the appropriate Government may direct that any or all of the provisions of Chapter II to Chapter VI shall not apply, and, if it does so direct, a declaration may be made under section 19 in respect of the land at any time after the date of the publication of the preliminary notification under sub-section (1) of section 11. (5) An additional compensation of seventy-five per cent. of the total compensation as determined under section 27, shall be paid by the Collector in respect of land and property for acquisition of which proceedings have been initiated under sub-section (1) of this section:

Provided that no additional compensation will be

required to be paid in case the project is one that affects the sovereignty and integrity of India, the security and strategic interests of the State or relations with foreign States.”

11.In the present case, the acquisition is not for the defence of India or national security or for any emergencies arising out of natural calamities or such emergency declared with the approval of Parliament. Therefore, the present acquisition proceedings did not satisfy Sub Section 2 of Section 40 of the Act.

12.Similar provisions under the Land Acquisition Act, 1894, viz., Section 17 of the said Act was considered by this Court and the Honourable Supreme Court in several cases.  Considering several judgments on the subject, the Honourable Supreme Court in Radhy Shyam (Dead) through LRs., and others vs State of Uttar Pradesh and others, culled out the following principles that emerges from the decision of Honourable Supreme Court in several other cases:

“(i) Eminent domain is a right inherent in every sovereign to

take and appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any portion of the soil of the State including private property without its owner’s consent provided that such assertion is on account of public exigency and for public good. – Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., AIR (1954) SC 119, Chiranjit Lal Chowdhuri v. Union of India AIR (1951) SC 41 and Jilubhai Nanbhai Khachar v. State of Gujarat (1995) Supp. (1) SCC 596.

• The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly – DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana (2003) 5 SCC 622; State of Maharashtra v. B.E. Billimoria (2003) 7 SCC 336 and Dev Sharan v. State of U.P., Civil Appeal No.2334 of 2011 decided on 7.3.2011.
• Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that compulsory taking of one’s property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the Court is not only entitled but is duty bound to scrutinize the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the land owner is likely to become landless and deprived of the only source of his livelihood and/or shelter.
• The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4, 5-A and 6 of the Act. A public purpose, however, laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the State can invoke the urgency provisions and dispense with the requirement of hearing the land owner or other interested persons.
• Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even few weeks or months. Therefore, before excluding the application of Section 5-A, the concerned authority must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired.
• The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17(1) and the same can be challenged on the ground that the purpose for which the private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the concerned authorities did not apply mind to the relevant factors and the records.
• The exercise of power by the Government under Section 17(1) does not necessarily result in exclusion of Section 5-A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of his objection. The use of word “may” in sub- section (4) of Section 17 makes it clear that it merely enables the Government to direct that the provisions of Section 5-A would not apply to the cases covered under sub-section (1) or (2) of Section 17. In other words, invoking of Section 17(4) is not a necessary concomitant of the exercise of power under Section 17(1).
• The acquisition of land for residential, commercial, industrial or institutional purposes can be treated as an acquisition for public purposes within the meaning of Section 4 but that, by itself, does not justify the exercise of power by the Government under Section 17(1) and/or 17(4). The Court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional areas usually take few years. Therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17(1). In any case, exclusion of the rule of audi alteram partem embodied in Section 5-A (1) and (2) is not at all warranted in such matters.
• If land is acquired for the benefit of private persons, the Court should view the invoking of Section 17(1) and/or 17(4) with suspicion and carefully scrutinize the relevant record before adjudicating upon the legality of such acquisition.”

13.In the present factual scenario, this Court is unable to find

any urgency, which would justify the exercise of power by the State Government to invoke Section 40 of Act.  Though the Government, while exercising the power of eminent dominant, has a right inherent to acquire any land for public purpose, the power should be exercised for public purpose following several procedures contemplated under the Act. In this case, this Court is unable to justify the proposal to acquire the lands belonging to the Writ Petitioners, who have purchased small extent of plots in a layout.  When the purpose for acquisition did not fall under the category of cases in respect of which, such urgency power can be exercised, this Court is of the view that the whole acquisition suffers from illegalities and opposed to law.  The acquisition proposed by invoking urgency claim is unconstitutional.

14.As pointed out earlier, the proposal for acquisition was

started even in the year 2015.  Invoking the power under Section 40 of Act for dispensation of preliminary enquiry, as contemplated under the Act, suffers from legal mala fides and this Court is of the view that the whole acquisition proposed is vitiated for total non application of mind inasmuch as the authorities have proceeded to acquire the Writ Petitioners’ lands only for the purpose of re-habilitation and not for any real urgency, as contemplated under Section 40 of the Act.  This Court is unable to find any justification as to why the State intends to pay additional compensation by acquiring private lands, when alternative Government poramboke lands are available, as contended by the Writ Petitioners.

15.For all the reasons stated above, this Court find no merit in

the Writ Appeals and hence, dismissed.

Writ Petitions:

16.In view of the dismissal of the Writ Appeals confirming the orders passed in W.P(MD)Nos.070, 9092 and 12267 of 2018, the Writ Petitions in WP(MD)Nos.16902, 16908, 16913, 16920, 17067 and 17687 of 2020 are allowed and the impugned Government order vide G.O.Ms.No.140, Public (Military) Department, is quashed.

No costs.  Consequently, connected miscellaneous petitions are

closed.

  [S.S.S.R., J.]         [S.S.Y., J.]

23.09.2022 Index     : Yes / No

cmr

To

1.The Principal Secretary to Government,    Public (Military) Department,    St.George Fort, Secretariat, Chennai.

2.The Commissioner of Land Administration,    Chennai.

3.The District Collector,    Thanjavur District, Thanjavur.

4.The Member Secretary,    The Local Planning Authority,    Thanjavur.

5.The Block Development Officer,    Village Panchayat,    Inathukanpatti Village Panchayat,    Thanjavur.

6.The Public Information Officer /    P.A.to District Collector (General),    Thanjavur.

7.The Public Information Officer /         P.A.to Revenue Divisional Officer,    Thanjavur.

S.S.SUNDAR, J. and  S.SRIMATHY   , J.

cmr

Common Judgment made in

W.A(MD)Nos.1016 to 1018 of 2021 and

W.P.(MD)Nos.16902, 16908, 16913,

16920, 17067 and 17687 of 2020

23.09.2022