2011 Supreme(Mad) 1928

2011 (2) LW 607, 2011 (3) CTC 585
High Court of Judicature at Madras
K. CHANDRU
Kodanad Estate represented by its Manager S. Natarajan Nilgiris District
Versus
The Principal Secretary to the Government, Chennai & Another
W.P.NO.1497 of 2011 & M.P.Nos.1 to 3 of 2011
Decided On: 06-04-2011

Headnote:

Writ petition challenging the impugned notification issued by the State Government invoking urgency clause under Section 17(1) and also dispensing with the enquiry under Section 5A by invoking Section 17(4) of the Land Acquisition Act, 1894 in acquiring the land belonging to the petitioner Estate for an alleged public purpose in providing road for the residents of Anna Nagar and Kamaraj Nagar hamlets in Kodanad village, Kothagiri Taluk, Nilgiris District and by invoking Sections 17(1) and 17(4) of the Land Acquisition Act through the impugned notification, dated 31.12.2010 and published in the government gazette on the same day.

Fact of the Case:

The residents of two hamlets were having access to the road passing through the petitioner Estate. The road was situated in the patta land belonging to the petitioner Estate. The Estate had put restrictions on the use of vehicles and timings for access to the road. The Grama Sabha of the villages had requested the Government to acquire the road and to entrust it to the panchayat in its meeting held on 21.7.2007. But, however, the Sub Divisional Magistrate-cum-Assistant Collector, Coonoor had initiated proceedings under Section 133 of the Code of Criminal Procedure and had issued directions to the petitioner to keep open the Estate road for all times for all persons including vehicles without any obstruction or hindrance on the said road. The order passed by the Sub Divisional Magistrate came to be a subject matter of attack in Criminal Revision Case Nos.1486 and 1504 of 2007. The criminal revision came to be disposed of by a final order passed by this court on 28.4.2008 (the judgment since reported in 2008 (2) MLJ (Crl.) 402 Mad (Manager, Kodanad Estate, Kothagiri Taluk, Nilgiris District rep by R.Ravichandran Vs. Sub Divisional Magistrate and the Assistant Collector, Coonoor, Nilgiris District)). In that case, this Court in paragraphs 12.2 to 12.7 had recorded the following findings: 8. But, even thereafter considering the plight of the residents, in paragraph 14, this court gave the following advice to the petitioner Estate, which reads as follows: 14.A word of advice:- It is also needless to mention that the petitioner Estate will not deny access to the villagers of Anna Nagar and Kamaraj Nagar to use the pathway as it was done in the last 30 years with such restrictions and conditions as it may impose for utilising the Estate Road considering that it is the only access to the outside world for those villagers.

Finding of the Court:

The court found that there was no real urgency in invoking the urgency clause. The resolution passed by the Panchayat was on general terms without any details and it was made as early as July, 2008. Basing upon the resolution, the State cannot invoke the urgency clause having allowed the matter to linger for over the last four years. Further the apprehension raised by the villagers as reflected in the resolution which formed the basis does not exist any more, especially after the interim order passed by the Supreme Court on 18.3.2011 throwing open the road for all times without any hindrance. The files did not contain any material to invoke the urgency clause. On the contrary, the correspondence showed that the District administration hardly had any clear data regarding the survey number and the extent of the land that was sought to be acquired. The revised proposal was also sent without any field inspection though in the counter affidavit, a statement was made contrary to the fact on hand.

Issues: 1. Whether the impugned notification issued by the State Government invoking urgency clause under Section 17(1) and also dispensing with the enquiry under Section 5A by invoking Section 17(4) of the Land Acquisition Act, 1894 in acquiring the land belonging to the petitioner Estate for an alleged public purpose in providing road for the residents of Anna Nagar and Kamaraj Nagar hamlets in Kodanad village, Kothagiri Taluk, Nilgiris District and by invoking Sections 17(1) and 17(4) of the Land Acquisition Act through the impugned notification, dated 31.12.2010 and published in the government gazette on the same day is valid? 2. Whether the State Government had applied its mind in invoking the urgency clause and not hearing the objections of the land owner, i.e., the petitioner Estate?

Ratio Decidendi: 1. A notice under Section 5A is a valuable right for a land owner. 2. The notice under Section 5A was contemplated not only as part of principles of natural justice but also part of fair procedure in commensurate with Article 300A of the Constitution. 3. Mere notification either under Sections 17(1) or 17(2) by itself will not result in the dispensing with the enquiry under Section 5A. There must be an order independently to that effect must be issued. 4. If the State do not justify the dispensation of the enquiry by producing materials in the file then the notification is not valid. 5. The dispensation of the enquiry under Section 5A can be attacked only when there was non application of mind or if it is visited with mala fides. 6. The lethargy of the officials or unexplained delay can be a good ground for interfering with an order under Section 17(4) of the Land Acquisition Act. 7. The urgency clause found under Section 17(1) cannot be equated with the emergency clause set out under Section 17(2) read with Section 17(4).

Final Decision: The impugned notification in G.O.Ms.No.114, Rural Development and Panchayat Raj Department, dated 31.12.2010 stands set aside. The writ petition will stand allowed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.