S. Mohamed Jamal Mohideen vs The State of Tamil Nadu and Others

R. Subbiah, J.—The petitioner herein has filed this Writ Petition challenging the acquisition of his land comprised in Survey No. 606/1 measuring to an extent of 2 acre 77 cents (1.11.0 Hectare) situate at Melaseval Village, Ambasamudram Taluk, for the purpose of formation of flood carrier canal from Kannadian channel to drought prone area of Sathankulam, Thisayanvilai by interlinking Tamirabarani, Karumaniyar and Nambiyaru rivers in Tirunelveli and Thoothukudi Districts which in turn feeding tanks under Pachaiyar, Manimuthar main canal and tail end tanks of Karumeniar and Nambiar and stabilisation of existing ayacut and also bridging the gap, creation of new ayacut, totally benefiting 23040 hectares, increase in food production about 182895 tonnes and recharging of 5220 wells in wayside villages.

The case of the petitioner is that he is the owner of the land measuring to an extent of 4 acres and 29 cents in Survey No. 606 by having purchased the same from one Gragajoli Valliammal represented by her power agent Mohideen Fathima in an by a registered sale deed No. 608 of 2007, dated 31.07.2007. Similarly, the third respondent is the owner of the land measuring 2 acres 48 cents comprised in Survey No. 541/4 and 1 acre 48 cents in Survey No. 451/5 situate at Melaseval Village. The fourth respondent is the owner of the land measuring 24 cents in Survey No. 541/5. The fifth respondent is the owner of the land measuring 24 cents in Survey No. 541/5. The sixth respondent is the owner of the land measuring 32 cents in Survey No. 541/5.

In the year 2009, the first respondent herein for the purpose of formation of flood carrier canal from Kannadian channel to drought prone area of Sathankulam, Thisayanvilai by interlinking Tamirabarani, Karumaniyar and Nambiyaru rivers in Tirunelveli and Thoothukudi Districts, had sent a request to the Collector, Thirunelveli District, to choose the suitable land for acquisition of the same. Further, the first respondent also sent a communication to the Collector, Tirunelveli District to get the resolution passed from the Panchayat concerned in whose jurisdiction the land is situated in order to implement the above said project. When the petitioner came to know about the same, he made a detailed representation to the first respondent on 20.07.2009 objecting the acquisition of his land comprised in survey No. 606 stating that if the project is implemented on the straight line, there will not be any necessity to acquire the land of the petitioner but only to accommodate the respondents 3 to 6 whose lands situate on the straight line, the respondents 1 and 2 have deviated the route. Even thereafter the petitioner has sent several representations to the first respondent to carry out the project in the straight line without any deviation. However, the first respondent has issued the notification under Section 4(1) of the Land Acquisition Act invoking emergency provision of Section 17(4) of the Act on 25.09.2013 published in Makkal Kural newspaper in Madurai edition on 04.10.2013. It is the further case of the petitioner that the acquisition proceedings have been started in the year 2009 and the representation was submitted by the petitioner since 2009 onwards. But without considering the representations, suddenly, by invoking the emergency provision of Section 17(4) of the Act, notification under Section 4(1) of the Act has been issued. Absolutely there is no necessity to invoke the emergency provision contained in Section 17 (4) of the Act. Hence, aggrieved by the notification issued by the first respondent under Section 4(1) of the Act by invoking the emergency provision of Section 17(4) of the Act, the petitioner is left with no other option except to file this Writ Petition.

Along with the Writ Petition, the petitioner has filed an application in M.P.(MD) No. 2 of 2013 for interim injunction and this Court by order dated 11.11.2013 has passed an order of status quo.

On appearance the second respondent had filed a counter affidavit inter alia stating that the Government of Tamil Nadu vide G.O. Ms. No. 204, Public Works (P2)Department, dated 12.06.2008 have administratively sanctioned a sum of Rs. 369 crores for the formation of flood carrier canal from Kannadian channel to drought prone area of Sathankulam, Thisayanvilai by interlinking Tamirabarani, Karumaniyar and Nambiyaru rivers in Tirunelveli and Thoothukudi Districts, which in turn feeding tanks under Pachaiyar, Manimuthar main canal and tail end tanks of Karumeniar and Nambiar and stabilisation of existing ayacut and also bridging the gap, creation of new ayacut, totally benefiting 23040 hectares, increase in food production about 182895 tonnes and recharging of 5220 wells in wayside villages. Accordingly, the Chief Engineer, Water Resources Department, Madurai Region, has technically sanctioned the said scheme estimate for Rs. 369 crores and registered in CER No. 22/CE/WRO/MDU/2008-2009, by analysing all technical feasibility including fixing of alignment of canal by taking Remote Sensing Satellite Survey through 72 Km length and breadth of the canal, considering the gradient at various points, cutting and filling portion and without affecting the water spread area of each and every tank. Based on the above, land plan schedule have been prepared by Public Works Department for the extent of acquisition of dry and wet land in poramboke and patta land and the proposal was sent to Government and the Government in G.O. Ms. No. 375, Public Works (P2) Department, dated 23.12.2010 have ordered to acquire an extent of 10.05.0 hectares of wet land and 148.12.5 Hectares of dry land in Ambasamudram Taluk by invoking the provisions of the Land Acquisition Act 1894 (Central Act No. 1 of 1894) and also through private negotiations. The alignment of Canal was fixed by the Public Works Department by taking remote sensing satellite survey through 72 Km length and breadth of the canal, considering the gradient at various points, cutting and filling portion and without affecting the water spread area of each and every tank. In the particular case prior to approval by Government a survey study was conducted which slightly affect the poramboke land in the Water spread area of Aaradaippankulam, the ayacutdars of the above said tanks have objected the above proposed poramboke land and hence a slight modification has been made in the alignment without affecting the water spread area of above said tank and the Government in G.O. Ms. No. 375 Public Works (P2) Department, dated 23.12.2010 have approved the same. There is no change of alignment after approval of the scheme. As the project is for public purpose, there is no intention by the Government to left out or deviate or doing any favouritism to any Government officials. The lands in S. No. 606/1 measuring to an extent of 1.11.0 Hectares out of the total extent of 1.66.0 Hectares belonging to the petitioner lies in the canal reach L.S.16035 to 16220 m and is proposed to be acquired. The patta lands of respondents 3 to 6 in S. Nos. 541/5B, 541/5C, 541/5D as mentioned by the petitioner is away from the approved alignment of canal. Further, a portion of lands in S. No. 541/4 measuring to an extent of 0.67.5 Hectares belonging to the third respondent and a portion of land in S. No. 541/3Cl measuring to an extent of 0.45.5 Hectares belonging to the sixth respondent have also been excavated and canal formed after getting consent letter from the land owners. Now, the land acquisition work is in progress. Hence, it is incorrect to state that the petitioner''s lands are being acquired only to accommodate the respondents 3 to 6. If the straight line alignment as drawn by the petitioner is implemented, the entire scope of the scheme has not only been changed but it is technically proved to be failure, more expensive, the length of canal has to be increased and also the Water will not flow freely to the lower down and tail end areas. In respect of the Melaseval Village, Ambasamudram Taluk, an extent of 59.12 acres of land were proposed to acquire. Out of the said total extent of 59.12 acres, excavation work has been completed in 56.38 acres and the land acquisition work is in progress for the implementation of this project which include the patta lands of private persons and also the Government servants. The work of Excavation of canal from L.S. 15300m to 16035m and 16220m to 18000m has been completed except the portion of L.S. 16035 to 16220m which lies in the petitioner''s land. The writ petitioner alone is refusing to give consent to acquire his land. There is no profit motive and the emergency arises considering the benefit to be obtained from the above project to the general public particularly ayacutdars. Hence, by application of mind, the Government in G.O. Ms. No. 237, Public Works (P2) Department, dated 25.09.2013 have issued the notification under section 4(1) of the Act invoking the emergency provision of section 17(4) of the Act on 25.09.2013. As the proposed acquisition of land is squarely covered in need of urgency clause u/s. 17(1)e of the Act, the same also notified in the 4(1) Notification. So the opportunity for getting objection from the petitioner under Section 5-A of the Act does not arise in this case. The Government is competent to invoke section 17(1) of the Act, whenever in the opinion of the Government, it becomes necessary to acquire the immediate possession of any land for the formation of any irrigation or drainage channel. In the instant case, section 17(1) of the Act was invoked only after the subjective satisfaction of the Government and hence, the notification was issued accordingly. The notification under Section 4(1) of the Act itself shows the urgency and it is for the just and bonafide purpose of forming a flood carrier canal under the River Link Scheme sanctioned by the Government. But the Government is ready to compensate the loss if any foreseen by the petitioner since the land is acquired for bonafide public purpose. Thus, they sought dismissal of the Writ Petition.

The learned counsel for the petitioner submitted that the petitioner is the owner of the land measuring to an extent of 4 acres and 29 cents in Survey No. 606 situate at Melaseval Village which was acquired for the purpose of formation of flood carrier canal from Kannadian channel to drought prone area of Sathankulam, Thisayanvilai by interlinking Tamirabarani, Karumaniyar and Nambiyaru rivers in Tirunelveli and Thoothukudi Districts, by notification under Section 4(1) of the Act by invoking emergency provision of Section 17 (4) of the Act. In this regard, the learned counsel for the petitioner submitted that if the project is implemented on straight line alignment absolutely there is no need for the respondent to acquire the petitioner''s land. Since the lands of the respondents 3 to 6 are situated on the straight line in Survey Nos. 541/5B, 541/5C, 541/5D, in order to accommodate them, by deviating from the straight line alignment, the respondent is going to implement the project by acquiring the petitioners land. In this regard, the learned counsel for the petitioner submitted that the third respondent''s husband is a Village Administrative Officer. The fourth respondent is a Village Administrative Officer. The fifth respondent''s husband is a Village Administrative Officer. The sixth respondent''s son is the Tahsildar and only on their influence, now the project is deviated from the original route. In the year 2009, the first respondent had sent a request to the Collector to choose a suitable land for acquiring the same for the project. Thereafter, on 06.07.2010, a resolution was passed by the Melaseval Panchayat Union. Only thereafter in the year 2013 i.e., on 25.09.2013, the notification under Section 4(1) of the Act was issued. Immediately, the petitioner filed the present writ petition and obtained an order of status quo on 11.11.2013. Thereafter, after a long gap of one year i.e., on 05.09.2014 the second respondent has filed a vacate stay petition. Thus, the learned counsel for the petitioner submitted that the long time taken by the second respondent in issuing notification under Section 4(1) as well as in filing the petition for vacate stay would show really there is no urgency in the matter and absolutely there is no need for invoking the emergency provision of Section 17(4) of the Act. In this regard, the learned counsel for the petitioner also invited the attention of this Court to paragraph 8 of the counter and submitted that in the counter it has been stated that since the petitioner had refused to give his consent, immediately necessary proposals for acquiring the lands was sent to the Government. Assailing the said statement made in the counter, the learned counsel for the petitioner submitted that refusal to give consent by the petitioner cannot be a ground to invoke the emergency provision of Section 17(4) of the Act. Therefore, the impugned notification dated 25.09.2013 is liable to be quashed. In support of his contention, the learned counsel for the petitioner has also invited the attention of this Court to a judgment of the Hon''ble Supreme Court in Anand Singh and Another Vs. State of Uttar Pradesh and Others, wherein it has been held that under Section 5A of the Land Acquisition Act, hearing the objection of the owner of the land is a valuable right of the owner. Therefore, without hearing the objection of the owner of the land initiating acquisition proceedings by invoking emergency provision of Section 17(4) of the Act is not proper and correct.

Per contra, the learned Additional Government Pleader appearing for the respondents 1 and 2 submitted that for formation of flood carrier canal from Kannadian channel to drought prone area of Sathankulam, Thisayanvilai by interlinking Tamirabarani, Karumaniyar and Nambiyaru rivers in Tirunelveli and Thoothukudi Districts, on the straight line is not technically feasible. If the straight line alignment as drawn by the petitioner is implemented water would not flow freely to the lower down and tail end areas. The Public Works Department by taking remote sensing satellite survey through 72 Km length and breadth of the canal, considering the gradient at various points, cutting and filling portion and without affecting the water spread area of each and every tank, has decided to implement the project in the present route. Further, it is incorrect to state that only to accommodate the respondents 3 to 6 the project route was deviated from the straight line alignment. In this regard, the learned Additional Government Pleader submitted that the respondents 3 and 6 have given their consent to acquire the lands for the project. Insofar as the respondents 4 and 5 is concerned, their lands are far away from the project route. Therefore, if the project is implemented it would feed the tanks in the drought prone area of Sathankulam, Thisayanvilai by interlinking Tamirabarani, Karumaniyar and Nambiyaru rivers in Tirunelveli and Thoothukudi Districts and stabilisation of existing ayacut and also bridging the gap, creation of new ayacut, totally benefiting 23040 hectares, increase in food production about 182895 tonnes and recharging of 5220 wells in wayside villages. Now, because of the pendency of this Writ Petition, the project is delayed more than eight years. Thus, he sought dismissal of the Writ Petition.

Heard the submissions made by the learned counsels appearing on either side and perused the entire materials available on record.

Keeping in mind the submissions of the learned counsels appearing on either side and on careful perusal of the entire materials available on record, I find that the submissions of the learned counsel for the petitioner are three folds. Firstly, there is no need to invoke the emergency provision of Section 17(4) of the Act to issue notification under Section 4(1) of the Act. Secondly, if the project is implemented on the straight line alignment, there will not be any necessity to acquire the land of the petitioner in Survey No. 606. Thirdly, in order to save the lands of the respondents 3 to 6, the route is deviated from the straight line alignment. With regard to the first point, it is the main submission of the learned counsel for the petitioner that though the request was made by the first respondent to the Collector to choose the land for acquisition in the year 2009, the notification under Section 4(1) of the Act was issued only on 25.09.2013. Hence, now according to the counsel for the petitioner, had there been any emergency in acquiring the land to implement the project, the notification under Section 4(1) of the Act would have been issued in the year 2009 itself. Therefore, the delay in issuing notification under Section 4(1) of the Act would show that there is no urgency in implementing the project. But, in my considered opinion, the submission made by the learned counsel for the petitioner is not legally sound. If the said project is implemented, it would have benefited to feed tanks under Pachaiyar, Manimuthar main canal and tail end tanks of Karumeniar and Nambiar and stabilisation of existing ayacut and also bridging the gap, creation of new ayacut, totally benefiting 23040 hectares, increase in food production about 182895 tonnes and recharging of 5220 wells in wayside villages. The material available on record would show that several lakhs of people would be benefited by the project, hence, the Government is under the compulsion to implement the project as early as possible. Therefore, it cannot be stated that since the petitioner has refused to give consent, taking the same as a sole reason the second respondent by invoking the emergency provision of Section 17(4) of the Act issued the notification under Section 4(1) of the Act. Hence, I do not find any substance in the submission made by the learned counsel for the petitioner. Yet another submission of the learned counsel for the petitioner is that only to accommodate the respondents 3 to 6, the project route was deviated from the original route but the material available on record would show that the respondents 3 and 6 have given their consent to acquire their lands and insofar as the lands of the respondents 4 and 5 is concerned, it is far away from the project route. Further, the material available on record would show that by taking Remote Sensing Satellite Survey through 72 Km length and breadth of the canal, considering the gradient at various points, cutting and filling portion and without affecting the water spread area of each and every tank, the present route has been chosen. Further, it is the assertive statement of the respondents 1 and 2 that if the straight line alignment as drawn by the petitioner is implemented, the entire scope of the scheme has not only been changed but it is technically proved to be failure, more expensive, the length of canal has to be increased and also the Water not to be freely flown to the lower down and tail end areas. Therefore, the suggestion of the petitioner to implement the project on the straight line alignment cannot be accepted as he is not a technically qualified person to give such a suggestion. Therefore, absolutely I do not find any merits in the present writ petition and the same is liable to be dismissed. Accordingly, the present Writ Petition is dismissed as devoid of merits. No costs. Consequently, the connected miscellaneous petitions are closed.