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2009 Supreme(Mad) 3840
High Court of Judicature at Madras
THE HONOURABLE CHIEF JUSTICE MR. H.L. GOKHALE &
THE HONOURABLE MR. JUSTICE D. MURUGESAN
The Commissioner Corporation of Chennai
Versus
C.K. Ramachandran & Others
W.A.Nos.825 of 2009, 832 of 2009, 814 to 821 of 2009, & W.P.Nos. 17786, 16792, 16793, 16552 of 2009 & 29461, 29453 & 29454 of 2008
Decided On : 18-09-2009
For the Appellant:P.S. Raman, Advocate General assisted by V. Bharathidasan, Advocate, J. Raja Kalifullah, Government Pleader, K. Abudukumar Rajarathinam, S. Ashok Kumar, T. Mohan, Vijayalakshmi Rajarathinam, Srinivasan, Advocates. For the Respondents:R1, V.T. Gopalan, Senior Counsel, for K. Abudukumar Rajarathinam, K.V. Sanjeev Kumar, Advocates.
Ratios:
a. Raising objection to the acquisition of land on justifiable grounds is the valuable right of the land owners.
b. The right of the Government to acquire the land cannot be questioned except for the violation of the provisions of the Act or that such action is mala fide, unreasonable or colourable exercise of power.
c. An enquiry under Section 5-A of the Land Acquisition Act is the only safeguard for the land owners to oppose the land acquisition on valid grounds.
d. When the Government invokes urgency clause for acquisition of land, it is enough if it applies its mind and satisfy itself for the invocation of the urgency or unforeseen emergency, as the case may be.
e. Satisfaction of the Government regarding the necessity of invoking urgency clause for the acquisition of land need not necessarily be indicated in the notification as such and it would be sufficient if the records borne out such satisfaction.
f. When the Government acquires land by invoking urgency clause, it can be tested by the Courts on the grounds of reasonableness and application of mind to the situation that has warranted the invocation of urgency clause.
g. When Government proceeds to acquire any land by invoking urgency clause, the authorities have to exercise the power on reasonable grounds not arbitrarily. They must have specific satisfaction based on the relevant material as the existence of genuine urgency.
h. Delay in the invocation of emergency provision by itself would not vitiate the entire acquisition proceedings.
i. While acquiring land by invoking urgency clause, there need not be two separate notifications to comply with Sec.17.
Headnote:(A) Constitution of India-Art.300A-Land Acquisition Act, 1894 (1 of 1894)-Sec.4, 5A, 17-Land acquisition-Eminent domain-Urgency-Fly over-Mala fide-Challenge-Government issued notification to acquire land to construct fly over-Urgency clause invoked-Owners contended that there was no urgency and two separate notifications are to be issued-Single judge allowed one writ petition and it was challenged by Government-Government justified the invocation of urgency clause while the land owners resisted it-Held, Court can assess the need of the Government from the nature of the scheme itself-Two separate notifications are not necessary for the acquisition of land by invoking urgency clause-Government is justified in invoking urgency clause-Appeal allowed and writ petitions dismissed.
(B)Constitution of India-Art.300A-Land Acquisition Act, 1894 (1 of 1894)-Sec.4, 17-Land acquisition-Eminent domain-Mala fide-Objection-Rights of land owners-Raising objection to the acquisition of land on justifiable grounds is the valuable right of the land owners.
The power of eminent domain to acquire any land under the provisions of the Act is by now well recognised. Equally relevant is the right of the owners of the land by virtue of Article 300-A of the Constitution of India, that they shall not be deprived of their land except by the authority of law such as the procedures contemplated under the Act. One of the valuable rights for the owners is to raise objections to the notification issued under Section 4(1) of the Act opposing the acquisition on justifiable grounds.
Para 10
(C) Constitution of India-Art.300A-Land Acquisition Act, 1894 (1 of 1894)-Sec.4 -Land acquisition-Eminent domain-Mala fide-Objection-Rights of land owners-The right of the Government to acquire the land cannot be questioned except for the violation of the provisions of the Act or that such action is mala fide, unreasonable or colourable exercise of power- An enquiry under Section 5-A of the Land Acquisition Act is the only safeguard for the land owners to oppose the land acquisition on valid grounds.
As the right of the Government in exercise of the power of eminent domain to acquire the land cannot be questioned except for the violation of the provisions of the Act or that such action is mala fide, unreasonable or colourable exercise of power, an enquiry under Section 5-A of the Act is the only safeguard for the land owners to oppose the land acquisition on valid grounds. Para 10
(D)Constitution of India-Art.300A-Land Acquisition Act, 1894 (1 of 1894)-Sec.4, 17-Land acquisition-Eminent domain-Urgency-Objection-Rights of land owners- When the Government invokes urgency clause for acquisition of land, it is enough if it applies its mind and satisfy itself for the invocation of the urgency or unforeseen emergency, as the case may be- Satisfaction of the Government regarding the necessity of invoking urgency clause for the acquisition of land need not necessarily be indicated in the notification as such and it would be sufficient if the records borne out such satisfaction.
Whenever the Government invokes urgency clause under Section 17(1) or unforeseen emergency under Section 17(2), it can dispense with the enquiry under Section 5-A of the Act by specifically invoking the provisions of Section 17(4). The only requirement for the Government is that they should apply their mind and satisfy themselves for the invocation of the urgency or unforeseen emergency, as the case may be. This satisfaction need not necessarily be indicated in the notification as such ………, as it would be sufficient if the records borne out such satisfaction. Para 16
(E)Constitution of India-Art.300A-Land Acquisition Act, 1894 (1 of 1894)-Sec.4, 5-A, 17-Land acquisition-Eminent domain-Urgency-Subjective satisfaction-Application of mind-Challenge-Mala fide-When the Government acquires land by invoking urgency clause, it can be tested by the Courts on the grounds of reasonableness and application of mind to the situation that has warranted the invocation of urgency clause- When Government proceeds to acquire any land by invoking urgency clause, the authorities have to exercise the power on reasonable grounds not arbitrarily. They must have specific satisfaction based on the relevant material as the existence of genuine urgency.
The law on the discretion of the Government to dispense with the enquiry under Section 5-A being statutory in nature, it should be exercised on reasonable grounds and cannot lapse into arbitrariness or caprice. The State authorities must have specific satisfaction based on the relevant material, rule and genuine urgency existed and that any invocation of the urgency clause would not defeat the very purpose of the acquisition. The Court is bound to satisfy itself as to whether the discretion exercised by the Government could be tested on reasonableness and on application of mind to the situation that has warranted for invocation of the clause. Para 17
(F)Land Acquisition Act, 1894 (1 of 1894)-Sec.4, 5-A, 17-Land acquisition-Eminent domain-Urgency-Delay-Subjective satisfaction-Application of mind-Challenge- Delay in the invocation of emergency provision by itself would not vitiate the entire acquisition proceedings.
The delay in the invocation of emergency provision by itself would not vitiate the entire acquisition proceedings. Para 21
(G)Land Acquisition Act, 1894 (1 of 1894)-Sec.17-Land acquisition-Urgency-Notification-Subjective satisfaction-Challenge-While acquiring land by invoking urgency clause, there need not be two separate notifications to comply with Sec.17.
One more argument advanced is that there should be two separate notifications under Section 17(2) and Section 17(4) of the Act. A careful reading of both the provisions does not indicate of any such requirement. In fact all that the appropriate Government to satisfy is the application of mind and once it is satisfied, both the notifications can be made simultaneously.
Para 23
Writ Petitions filed under Article 226 of The Constitution of India, praying for the issue of Writ of Mandamus, as stated therein.
D. Murugesan, J.
The writ appeals, at the instance of the Corporation of Chennai as well as the official respondents of the State, arise out of the common order passed by the learned single Judge dated 5. 2009 allowing Writ Petition Nos.26112 of 2008 etc., and the writ petitions are at the instance of the land owners/persons interested in the lands sought to be acquired. As the grounds of challenge to the land acquisition proceedings in both the writ appeals and writ petitions are common, they are disposed of by this judgment.
2. All the above writ appeals and writ petitions concern with the notification made under Section 4(1) read with Section 17(2) of the Land Acquisition Act, 1894 in G.O.Ms.No.172, Municipal Administration and Water Supply (MC1) Department dated 9. 2008 and published in the Tamil Nadu Government Gazette Extraordinary Part II on the same date as well as the declaration made under Section 6 of the Land Acquisition Act, 1894 in G.O.Ms.No.184, Municipal Administration and Water Supply (MC1) Department dated 29. 08 and published in the Tamil Nadu Government Gazette Extraordinary Part II on the same date.
3. In order to decongest and regulate the heavy flow of traffic, the Government through the Corporation of Chennai are implementing schemes for construction of flyovers in the roads which are prone to heavy traffic. As a part of such initiative, studies were conducted and a proposal was mooted for construction of a flyover at the junction of Pasumpon Muthuramalinga Thevar Salai and Turn Bulls Road in the year 1997. The said proposal could not be implemented for certain reasons. Over the period, a steady increase in volume of traffic during the peak hours was noticed at Cenotaph Road followed by Kotturpuram Road, which is also known as Turn Bulls Road. Therefore, the services of the Division of Traffic Engineering of the College of Engineering, Anna University and M/s L&T Ramboll were sought. Study reports were submitted to the Government accordingly. The earlier proposal to construct a flyover at the junction of Pasumpon Muthuramalinga Thevar Salai and Turn Bulls Road was also studied by Anna University as well as by M/s L&T Ramboll and the report suggested for construction of a flyover at the junction of Cenotaph Road and Turn Bulls Road. The road on which the flyover was proposed to be constructed belongs to the Corporation. While such flyover is constructed, the Corporation is also obligated to provide parallel service lanes on both sides of the road for free flow of traffic as well as to provide access to the adjacent residents. In pursuance of the report, the Government decided to construct a flyover along Cenotaph Road and Turn Bulls Road. In order to provide service lanes, certain lands were sought to be acquired urgently. Hence the Government issued notification under Section 4(1) of the Land Acquisition Act, 1894 (for short, "the Act") for acquisition of the lands. While doing so, the Government decided to invoke the urgency clause and accordingly, issued the notification under Section 17(2) of the Act for acquisition of an extent of 18,225 sq.ft., or 7 grounds 1425 sq.ft., of land in as many as 25 survey numbers. By the same notification, the Government also notified the dispensation of enquiry under Section 5-A of the Act in exercise of the power under Section 17(4) of the Act. The said notifications came to be challenged by the writ petitioners before the learned single Judge who, by order dated 5. 2009, quashed the notifications on the ground that there was no justification for invoking the urgency clause. Aggrieved by the said order, the Corporation of Chennai and the Government have preferred these writ appeals. Some of the writ petitions which were pending before the learned single Judge are also tagged along with the appeals at the request of all the par
