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Judgment
E. Padmanabhan, J.—The Petitioners 1 to 12 herein has filed the present writ petition praying for the issue of writ of certiorari to call for the
records of the second Respondent relating to the Declaration made u/s 6 of the Land Acquisition Act, 1894 in G.O. Ms. No. 718, dated
22.S.1986 (Housing and Urban Development) Dept., issued by the second Respondent in respect of the Petitioners'' land and quash the same.
On 24.6.1996 itself, Raju, J. as he then was directed that the matter be listed before a Division Bench for consideration since the acquisition is
of the year 1986 and in the interest of justice the matter could be straightway disposed of by a Division Bench. Subsequently the matter was listed
before more than one Division Bench. But it had not been disposed of so far. Ultimately the matter was listed before us for final disposal as per the
orders of the Hon''ble The Chief Justice dated 12.6.2001. Accordingly we have heard the matter.
Heard Mr. T.R. Rajagopalan, learned Senior Counsel appearing for Mr. R. Balachandran, for the Petitioners and Mrs. N.G. Kalaiselvi, Special
Government Pleader for Respondents 1 and 2 and Mr. Kasikumar, learned Counsel appearing for Mr. K. Chelladurai for the third Respondent.
The facts leading to the writ petition as set out in the affidavit filed in support of the writ petition could be summarised briefly. The Petitioners
plead that 45 grounds, and 160 sq.ft., originally belonged to one Fathima Sultan Begum who executed a deed of settlement on 6.7.1973 in favour
of the first Petitioner, one of the objects of which is to serve and run a hospital. Settlement was effected to enable the settlee to carry out the
objects. The first Petitioner and other Petitioners along with Dr. G. Arjundass, Dr. Mumtaz Ali and two others formed a partnership to carry on the
object under the name and style of ""Real Estate Development Corporation"" with the object inter alia of construction of hospital, Nursing Home,
Dispensaries etc., and running and maintaining the same. An extent of 33 grounds in the front portion was treated by the first Petitioner as its capital
contribution with the partnership. There had been subsequent adjustments and divisions by metes and bounds. All the partners are interested in
specific portions and though there had been a dissolution of the partnership formed, they have jointly proposed to construct a hospital on the
property and submitted plans to the MMDA for necessary sanction. It is a project of a team of local Doctors as well as Doctors who were
practising in United Kingdom and United States of America who have proposed to form a company and the name has been registered as Tamilnad
Hospitals. The hospital which was proposed for a public charitable purpose in that 15% of the beds should be free and 30% of the beds should be
charged nominally for the poor and a moderate charge should be charged for the middle income group. While so the second Respondent effected
a publication u/s 4(1) of the Land Acquisition Act proposing to acquire the land for the purpose of construction of a multistoreyed building for
TNHB. The notification was published in the Tamil Nadu Government Gazette dated 17.4.1985, in English Daily Hindu on 10.5.1985 and in Tamil
Daily, Thinathanthi on 11.5.1985 and the public notice said to have been effected on 25.5.1985. No notice has been affixed on the land. The first
Respondent has been authorised to exercise the powers conferred by the Act and to perform the functions of the Collector under the Act. Notice
in terms of Rule 3 was served on the first Petitioner and the other Petitioners were served. On coming to know of the said notice eight objections
were raised in all. Even before filing of objections, the Petitioners have submitted memorandum to His Excellency Government of Tamil Nadu, and
the Secretary to the Governor of Tamil Nadu on 26.8.1985. The same was forwarded to the Secretary to the Government for appropriate action.
The first Respondent forwarded the Petitioners objections to the Housing Board. Though the officials of the Housing Board felt that it would not
be advisable to acquire the land, however, the then Chairman of the Housing Board Mr. Thiruppur Manimaran was bent upon acquiring the land
because of animosity he has developed as the Petitioners have made representations in advance to the Governor of Tamil Nadu and also Secretary
to the Government. Because of the official bias the Chairman had developed in favour of acquiring the land he has committed himself to the Press
by issuing statements from time to time. The third Respondent had made Press statement on 13.4.1986 which appeared in Indian Express as well
as Tamil Daily Thinathanthi. Further statement issued was published on 16.5.1986. The statements of the then chairman as seen from the news
reports was that the Respondent-Housing Board proposing to construct Rs10 to 12 crores shopping complex-cum-office accommodation on
about 48 grounds near Taj Coromandel Hotel referring to the subject matter of the present writ petition. The third Respondent had decided to
overrule the objections raised by the Petitioner. The enquiry under Rule 3(b) of the Land Acquisition Rules was adjourned from 24.4.1986 to
28.4.1986. The Petitioners were not served with the copy of the letter dated 16.4.1986 of the third Respondent even at the time of enquiry. On
28.4.1986 after completion of all the enquiries and when the Petitioners were'' to leave, the first Respondent handed over a copy of the letter
dated 25.4.1986 sent by the third Respondent to the first Respondent. The same inter alia stated that the proposal of the Petitioners to establish a
hospital is an afterthought since the Housing Board had decided to construct flats to various categories like economically weaker section, low
income group, middle income group, higher income group etc., in the year 1981 itself and the Government had also approved the 4(1) Notification
during the year 1985. Thereafter the Petitioners received a communication from the first Respondent overruling the objections of the Petitioners
and submitted Section 6 Draft Declaration, Representations were submitted to the Secretary to the Government. However a Declaration has been
published issued Section 6 of the Act in G.O. Ms. 718 Housing and Urban Development Department, dated 22.5.1986 which was published in
the Government Gazette on 23.5.1986, News Today on 23.5.86. Being aggrieved by the said acquisition, the present writ petition has been filed
raising a number of grounds.
Per contra, on behalf of the Respondents, a counter affidavit sworn to by the Deputy Secretary to Government has been filed. According to the
counter affidavit, the third Respondent submitted proposal for acquisition for an extent of C. 1.21.01.180 square feet of land in R.S. No. 126/3 in
Nungambakkam Village, for the development of the area for construction of multi-storeyed building by the Tamil Nadu State Housing Board. The
State Government approved the Notification u/s 4(1) in G.O. Ms. No. 345, Housing and Urban Development Department, dated 2.4.1985. After
observing all the formalities enquiry u/s 5A of the Act was conducted on 28.6.1985 and 16.7.1985. The gist of objections filed at the time of 5. A
enquiry was sent to the third Respondent for his remarks. The third Respondent in his letter dated 16.4.1986 overruled the objections of the land
owners and requested to proceed further in the matter. The remarks of the third Respondent were communicated to the objectors on 17.4.1986
and their acknowledgment was obtained. The enquiry under Rule 3(b) was conducted on 24.4.86 and 28.4.86. The land owners and the
representative of the Housing Board were present and both were heard. Once again by communication dated 25.4.1986 the third Respondent
overruled the objections of the land owners and requested the second Respondent to forward the draft declaration.
On 28.4.1986 proceeding u/s 5A of the Act was issued by the first Respondent. The State Government approved the declaration and issued
the same in G.O. Ms:718, Housing and Urban Development Department dated 22.5.1986 and it was published in the Gazette extraordinary dated
28.5.1986. The substance of the Declaration was also published in the local daily Newspapers namely News Today on 23.5.1986 and Makkal
Kural on 24.5.1986. The gist of the Declaration was also published in the locality and the respective offices on 23.5.1986. The State Government
issued a direction u/s 7 which was published in the Gazette on 23.7.1986. According to the Respondents all the required formalities prescribed by
the Land Acquisition Act has been complied with. Rule 3 has been strictly compelled with. The objections have been rightly overruled by the
Chairman of the Tamil Nadu Housing Board as the land is required for purpose of the Housing Board.
The remarks of the Chairman of Tamil Nadu Housing Board was communicated in endorsement dated 17.4.1985 and acknowledgment was
obtained. Enquiry under Rule 3(b) was conducted on 24.4.1986 and 28.4.1986, on which date land owners and the representatives of the housing
Board were present and both of them were heard. The Respondent asserted that the acquisition of the land is for a public purpose. While referring
to the Notification and Declaration respectively made and issued under Sections 4 and 6 of the Act, the Respondent stated that the land is required
for the public purpose namely for construction of multi-storeyed building. The Respondents denied that the Chairman had stated that the land is to
be used for the purpose of Shopping complex cum office accommodation. Though the Petitioners have submitted their application to the MMDA
during the year 1984 for the purpose of constructing a Hospital Complex, the same has not been pursued further and the objections of the
Petitioners is an after thought.
The gist of the objections filed by the Petitioner at the time of 5-A enquiry was sent to the third Respondent who in turn had submitted his
remarks which have been communicated to the land owners. In terms of Rule 3(b) the enquiry was conducted on 24.4.1986 and 28.4.1986. The
acquisition is not liable to be interfered and various grounds advanced by the Petitioners are devoid of merits.
During the hearing of the above writ petition, the learned Senior Counsel appearing for the Petitioners raised the following contentions:
(i) the acquisition is illegal, vitiated and liable to be quashed, in that the alleged purpose for which the land is acquired is not a public purpose and
the purpose as disclosed by the Respondent varies from stage to stage or its shifting stand as to purpose?
(ii) Rule 3(b) of the Tamil Nadu Land Acquisition Rules, which is mandatory, has not been followed, in that the remarks of the third Respondent-
Housing Board had not been forwarded or communicated to the Petitioners and no further opportunity has been afforded by way of hearing of
objections and remarks, if any?
(iii) The Land Acquisition Officer/Collector had not acted as required in terms of Section 5-A in considering the objections -put forward by the
Petitioners, except to submit himself to the dictation of the third Respondent Housing Board.
(iv) The action of the Respondents 1 and 2 in overruling the objections and proceeding further with the issue of Section 6 Declaration is arbitrary, a
colourable exercise of power, ultra vires of powers of the Tamil Nadu Housing Board and violation of the mandatory provisions of The Land
Acquisition Act.
(v) The subject matter of the acquisition being bungalows and adjacent land is not liable to be acquired and the proposal of the third Respondent is
mala fide and the Section 4(1) Notification and Section 6 Declaration are arbitrary and not a bona fide exercise of power, but a colourable
exercise and it is vitiated by illegalities.
Elaborating the above contentions, the learned Senior Counsel submitted his arguments, while Mrs. Kalaiselvi, learned Special Government
Pleader submitted that the above contentions are devoid of merits and there are materials to establish compliance of Rule 3(b), that the acquisition
is not vitiated by irregularities or illegalities sought to be made out, and that it is a bona fide exercise of power, that the acquisition is for a public
purpose and the contentions of the Petitioners are devoid of merits.
The contentions are that Section 4(1) Notification as well as Section 6 Declaration are vague, that the purpose of acquisition is not a public
purpose, that the proposal to acquire the land is not for a definite public purpose and that it is a mala fide action on the part of the then Chairman of
the Housing Board. The acquisition is not for a public purpose and the Housing Board has no specific project or programme nor it had its scheme
approved by the State government at the appropriate stage. It is vehemently contended that the purpose is not a public purpose and the land
acquisition cannot be sustained.
The learned Senior Counsel also points that the discrepancy in the schedule with respect to the lands as set out in Section 4(1) Notification,
Rule 3(b) Notice and Declaration u/s 6 of the Act even with respect to owners or interested persons. As seen from Section 4(1) Notification dated
12.4.1985, it is stated that the lands are required for a different public purpose ""for the development of area, for construction of multi-storeved
building by Tamil Nadu Housing Board"".
Rule 3(b) Notice also contains the same purpose. However, the remarks of the third Respondent which has been handed over, according to
the Petitioners after Section 5A enquiry, which is dated 25.4. 1986 disclose that the Board has decided to acquire the land for the construction of
residential flats to various categories like economically weaker section-Low Income Group. Middle Income Group and Higher Income Group in
the land. In the Section 6 Declaration, it has been mentioned that the land is acquired for the public purpose namely for the construction of
multistoreyed building by the Tamil Nadu Housing Board and the entire amount of compensation is to be awarded for the land is to be paid out of
the funds controlled or managed by the Tamil Nadu Housing Board Though Section 4(1) notification and Section 6 Declaration proceed as if the
land is required for the purpose of a public purpose for construction of a multi-storeyed building as seen from the objections forwarded by the third
Respondent it is for putting up residential flats for persons of Low Income Group, Middle Income Group and Higher Income Group. No material
has been placed by any of the Respondents to show that the Housing Scheme has been approved by the State Government as required by the
Tamil Nadu State Housing Board Act in respect of the acquisition. If that be so, the proposal is not for a specific purpose and it is also challenged
on that ground. The challenge being that it is not for a public purpose but the acquisition is for a purpose of putting up a multi-storeyed commercial
complex and office accommodation as seen from the very statement made by the Chairman of the Tamil Nadu Housing Board.
The Chairman of the Housing Board in his Press statement had stated that the Housing Board had proposed to put up a shopping complex
near the Taj Coromandel Hotel and that he had inspected the property on the previous day. The said Press statement appeared in the Tamil Daily.
So also in the English Daily Hindu on 16th May 1986. As reported in Hindu, dated 16.5.1986, the Chairman of the third Respondent Housing
Board stated that the Housing Board has proposed to construct a shopping complex at a cost of Rs. 6 crores at Saidapet and another one near
Taj Coromandel hotel in Nugambakkam for Rs. 13 crores, under contemplation. English Daily ""Indian Express"" dated 13.4.1986, also reported
the press statement issued by the then Chairman of the third Respondent-Housing Board, wherein the statement of the Chairman has been
reported thus: ""Yet another big project of the Board, for which he had seen about 48 grounds near Taj Coromandel Hotel in Nungambakkam only
on Friday, was also on the cards. The land belonged to the Government and the Board planned to acquire it for the purpose of constructing a
Rs10 to 12 crore shopping complex plus office accommodation on it. A perusal of all the above Notification, Declaration, Press statements as well
as the remarks of the Housing Board and the statement of the third Respondent-Housing Board to the Press from time to time would show that
there is no consistent purpose or object for which acquisition in undertaken. There is no particular scheme or proposal as seen from the foregoing
Press statements made as seen from the Notification and Declaration and remarks submitted at the stage of Rule 3(b) enquiry.
Notification u/s 4(1) as well as Declaration u/s 6 and as seen from the schedule describing the land as Government Bungalow and land
comprised in R.S. No. 126/3 stating that it belonged to the Petitioner and others measuring 45 grounds and 0160 sq.ft. The Press statement by the
third Respondent proceeds as if the land belong to the Government. If the land really belong to the Government, there is no occasion for the
Respondent to issue a notification u/s 4(1) or a declaration u/s 6, while the 4(1) notification and Section 6 declaration also proceeds as if it is a
Government Land bungalow and land belongs to 16 others. The indication that it is Government Bungalow and land would show that the
Respondents have no consistent stand with respect to the ownership, nor they had a specific and clear case in respect of ownership. The schedule
is misleading. The press statement of the third Respondent also proceeds on the premise that the land belong to the State Government. All these
would demonstrate the total non application of mind on the part of the Respondents, either with respect to purpose of acquisition or ownership of
the land, while there are documents to show that the land belonged to Dr. G. Arjundass and various other leading medical practitioners in the city
and the first Petitioner-company.
On the representation submitted by the Petitioner to the State Government remarks were called for from the Special Commissioner and
Commissioner for Land Administration as well as the District Collector. The Special Commissioner by his D.O. Letter 22.5.1986, addressed to
the Government of Tamil Nadu, strongly recommended to drop the acquisition proposal of the land in question, while considering the objections
submitted by the Petitioners in their representation to the State Government as well as His Excellency the then Governor. A copy of the same had
been placed before the court and it is also available in the file produced at the hearing.
It is also the stand that the Housing Board officials were not interested in the acquisition, but it is only the then Chairman Mr. Tiruppur
Manimaran, was particular in acquiring the land in question. The question whether the acquisition is for a public purpose has to be examined with
reference to the purpose set out in the notification as well as declaration as held in various decisions. There is inconsistency with respect to the
purpose for which the land is proposed to be utilised by the Housing Board and there is a shifting stand in the purpose from stage to stage. All the
above prevented the Petitioner from putting forth effective objection to the acquisition proposal.
Prima facie issues to be examined are:
i) Whether the public purpose set out in the impugned notification and declaration is vague? Whether the acquisition is a bona fide action and bona
fide exercise of power under the Land Acquisition Act? Whether the public purpose of development of the area for construction of multi-storeyed
buildings by the Tamil Nadu Housing Board is ultra vires to the powers conferred on the Housing Board constituted under the Tamil Nadu State
Housing Board Act 1961?
To consider the above, it is essential to refer to the material portion of Section 4 (1) Notification, dated 2.4.1985, which reads thus:
to wit, for development of the area for construction of multi-storeyed building by the Tamil Nadu Housing Board.
Section 6 Declaration, dated 22.5.1986 published in the Gazette dated 23.5.1986 reads thus:
to wit, for construction of multi-storeyed building by the Tamil Nadu Housing Board.
The question whether the public purpose set out in the notification is vague or not is a question of fact to be decided in each case as has been
held by the Apex Court in State of Tamil Nadu v. L. Krishnan reported in 1996 (1) SCC 251. In the said pronouncement, it has been held thus:
The next question is whether the public purpose stated in the three notifications concerned is vague. It must be remembered that what is vague
is a question of fact to be decided in each case having regard to the facts and circumstances of that case. By saying that the public purpose in the
said notifications is vague what the Respondents really mean is not that it is not a public purpose but that since the public purpose is expressed in
vague terms and is not particularised with sufficient specificity, they are not in a position to make an effective representation against the proposed
acquisition"". * * * *
So far as the decision in Munshi Singh (decided by the Bench comprising K.S. Hedge, A.N. Grover and D.G. Palekar, JJ.) is concerned, it
does contain certain observations supporting the Petitioners'' contentions but it must be remembered that this decision was referred to and
explained in Aflatoon. In Aflatoon, it was stated that whether the public purpose stated in a particular notification is vague or not is a question of
fact to be decided in each case and cannot be treated as a question of law. It was also emphasised that where large extents are sought to be
acquired for development or similar purposes, it would not be possible to specify how each owner''s bit would be utilised and for what purpose.
We are of the respectful opinion that the decision in Munshi Singh should be read subject to the explanation and the holding in Aflatoon which is a
decision of a Constitution Bench. As pointed out herein before, in a subsequent decision in Lila Ram, another Constitution Bench has also
emphasised the very same aspect. We are, therefore, of the opinion that Munshi Singh does not come to the rescue of the writ Petitioners-
Respondents in these matters.
Nowhere in the Notification of Declaration of remarks submitted by the Housing Board, it has been set out that the land is being acquired for
the purpose of executing a scheme of improvement scheme provided by the Housing Board under the Tamil Nadu State Housing Board Act,
1961. It is true that in State of Tamil Nadu v. L. Krishnan it has been laid down by the Apex Court that non-mention of the scheme framed by the
Housing Board does not affect the Notification u/s 4(1). In this case, two bungalows and surrounding land on Nungambakkam High Road
(Mahatma Gandhi Road), next to the Star Hotel Taj Coromandel, is the subject matter of acquisition. Notes file has been placed before the Court
to show that the Housing Board has resolved to undertake construction of multi-storeyed building in the heart of the city. Yet a request has been
sent by the then Chairman for acquisition of the bungalows and the land by merely stating that the land is required for the development of the area
for construction of multi-storeyed buildings by the Tamil Nadu Housing Board.
The area where the land is located is a well developed area and it is in the heart of the city of Chennai even during the year 1985. After having
set out the purpose as extracted above, curiously in the remarks submitted to the objections raised by the land owners under Rule 3(b) read with
Section 5(A), the Housing Board remarked thus:
Tamil Nadu Housing Board has already decided for acquisition of the above land for the construction of flats to various categories like
Economically Weaker Sections. Low Income Groups. Middle Income Groups and Higher Income Groups in the above land.
However, a letter written by the Superintending Engineer dated 9.4.1986 addressed to the Chairman Tamil Nadu Housing Board would
disclose that the Tamil Nadu Housing Board in its resolution No. 413 dated 3.12.1981 approved a proposal to initiate land acquisition for
acquiring the lands for residential houses for the economically weaker section, low income group, middle income group and higher income group.
On 13.4.1986 in the Tamil Dailies, it is reported that the land is required for construction of shopping-cum-office complex at a cost of Rs. 10
to 12 crores, which is quite contrary to the original proposal. In the remarks submitted with reference to the objections raised by the Petitioners,
the Housing Board had stated that the land is required for the construction of flats to various categories like, EWS, LIG, MIG and HIG in the said
land. The Press statement specifically referred to by the Petitioners had not been controverted by the Respondents. The Press statement of the
Chairman will disclose that the land is required for commercial purposes while the remarks submitted under Rule 3(b) would mention that the land
is required for Housing Scheme for EWS, LIG, MIG and HIG. Yet, in Section 4(1) Notification as well as the Section 6 Declaration the purpose
set out being construction of commercial complex-multi-storeyed building. Hence, it is obviously clear that the purpose of the acquisition is not only
vague, but also the purpose shifts from time to time and there is no consistency.
Further, in terms of Chapter VII of the Tamil Nadu State Housing Board Act, which provides for housing or improvement schemes, the Board
may incur expenditure or undertake works for the framing and execution of such Housing or improvement scheme as it may consider necessary.
Section 37 provides for Housing or improvement scheme to be framed by the Board. Section 89 prescribes the matters to be provided by housing
or improvement schemes. Section 40 provides the type of housing or improvement schemes and they are House Accommodation scheme,
rebuilding scheme, re-housing or rehabilitation scheme, a city or town or village scheme, a street scheme, a deferred street scheme, land
development scheme and general improvement schemes.
Section 41 of the Act details the Housing accommodation scheme. Section 42 provides for re-building scheme. Section 43 provides for re-
housing or rehabilitation scheme. Section 44 provides for city or town or village expansion scheme. Section 45 provides for street scheme and
Section 46 provides for deferred street scheme. Section 48 prescribes the general improvement scheme.
Section 2(9) defines the expression ""Housing or Improvement Scheme"" as a scheme framed under the Act and includes any one of the type of
schemes referred to u/s 40. A conjoint reading of Chapter VII and the definition of the expression ""Housing or Improvement Scheme"" and in
particular Section 40, may not take in a multi-storeyed complex to be undertaken by the Housing Board.
Thus the purpose of acquisition is vague, as has been held by the Supreme Court in Madhya Pradesh Housing Board Vs. Mohd. Shafi and
Others, and Munshi Singh and Others Vs. Union of India (UOI),
A Division Bench of this Court in Shanmuga Durai v. State of Tamil Nadu reported in 2001 (2) CTC 257 held that -- a public purpose
mention in the said cause being ?
To wit for land assembly (?) and development project along Inner Ring Road by Madras Metropolitan Development Authority.
and the said purpose has been held to be vague while following the decisions of the Apex Court in M.P. Housing Board v. Mohammed Shafi as
well as Munshi Singh v. Union of India as referred above.
In the present case, the purpose set out in the Notification and Declaration being construction of multi-storeyed building by the Tamil Nadu
Housing Board is vague, in that the Notification or Declaration did not disclose as to the nature of building or construction or nature of
development of multi-storeyed buildings is proposed or the purpose for which it is to be used or intended to be put. Construction of multi-storeyed
buildings by the Tamil Nadu State Housing Board would mean that it could be either a commercial complex or a residential complex or an office
complEx. It is not the case of the Respondents that the land is required for the purpose of the Housing Board to accommodate its office. On the
other hand, as seen from the Press statement given by the Chairman of the Housing Board and as seen from the remarks offered by the Housing
Board, the purpose disclosed being construction of EWS, LIG, MIG and HIG houses, which means residential accommodation.
Concedingly, no scheme has been framed by the Housing Board nor has been approved by the State Government nor a scheme has been
placed before this Court, though framing of such a scheme may not be essential or mandatory before undertaking the acquisition. Yet to test the
bona fides of the proposal or the action taken, the above aspects would disclose the motive or oblique motives of the Tamil Nadu Housing Board
in acquiring the two bungalows with land.
It is well settled that the land owner should be informed of the public purpose for which the land is proposed to be acquired, which will enable
him to state his objections effectively and if the purpose is vague it will disable the land owner to put forth his objections. On the facts of the case, it
is clear, that the purpose set out in Section 4(1) Notification as well as Declaration is vague, the acquisition is not a bona fide act on the part of the
Housing Board and the Housing Board has no consistent stand or purpose or requirement as pointed out by the Commissioner of Land
Administration in his letter dated 21.5.1986. The material portion of the said letter is extracted for immediate reference:
i) At the time of issue of 4(1) notification, the land was said as required for construction of houses for the economically weaker sections, low
income groups, middle income groups, etc. But at the 5A enquiry, when the land owners raised their objection to the acquisition of these costly
lands for the kind of housing mentioned, it was stated by the Tamil Nadu Housing Board that the land was to be used for shopping-cum-office
complEx. The purpose for which the lands are required cannot be varied by whim from time to time. The statement of the Tamil Nadu Housing
Board explaining the purpose of acquisition of lands at the time of 4 (1) notification and during 5A enquiry is not one and the same. This makes the
4 (1) notification vitiated and void.
It should not be forgotten that on the land proposed to be acquired, there exists two bungalows and the land is located in the heart of the
Metropolitan city and it is a well developed locality. It is not as if the locality is located in extension area or a new area which is uninhabited and the
Housing Board proposes to develop the area like Anna Nagar or K.K. Nagar or Ashok Nagar or neighbourhood scheme. Thus on a
consideration of the above aspects all the above three issues deserve to be answered in favour of the writ Petitioners and against the Respondents.
In this case, the notification u/s 4 of the Act was issued with a specific public purpose. However, the public purpose was changed before
Section 6 Declaration, as seen from the remarks offered by the Chairman of the Housing Board as well as Press Statements made by the said
authority, which would show that the public purpose mentioned either in Section 4 (1) or in Section 6 is not real and it is illusory at all relevant point
of time. Further, the public purpose did not remain the same till the acquisition is completed and the land vests with the Government.
The next point that arise for consideration is whether Rule 3(b) of the Land Acquisition Rules had been complied with. It is the contention of
the learned Counsel for the Petitioner that mandatory Rule 3(b) had not been complied with and this fatal to the acquisition. Per contra it is the
contention of the counsel for the Respondent that Rule 3(b) has been complied with and the remarks of the requisitioning body had been served on
the owners and that the contention is devoid of merits.
Section 4 (1) notification dated 2.4.85 was published in the gazette on 17.4.1985. A gist of Section 4 (1) notification was published in the
English Daily on 10.5.85 and in Tamil Daily on 11.5.1985. It is the case of the Respondents that the gist of Section 4 (1) notification had been
published in the locality on 24.5.85. On 10.6.85 notice of enquiry u/s 5(A) was issued by the Land Acquisition Officer. On 28.6.85 an enquiry
was held and the land owners filed their objections. Once again the enquiry had been posted to 16.7.85. The objection submitted by the
Petitioners to the Land Acquisition Officer had been forwarded to Tamil Nadu Housing Board by the Land Acquisition Officer on 14.8.95.
Thereafter, the Land Acquisition Officer sends a number of reminders to the Housing Board, to offer its remarks with reference to the objections
submitted by the land owners. Apart from setting out their objections before the Land Acquisition Officer, the land owners have addressed their
representations to the Secretary to Government Housing Department against the proposed acquisition.
On 16.4.1986, the Chairman of the Housing Board, namely, the requisitioning body, offers its remarks, but the copy of the said remark had
neither been forwarded to the land owners nor been furnished at any point in time before the enquiry. The Chairman of the Housing Board also
sent further remarks on 25.4.1986 in continuation to his earlier remarks dated 16.4.1986. The 5(A) enquiry, it is claimed, was conducted on
24.4.1986 and 28.4.1986. It is the case of the Petitioners that neither a copy of the remarks dated 16.4.1986 nor the remarks dated 25.4.1986
offered by the Housing Board had been furnished to the Petitioners as asserted by the Petitioners in this respect in the affidavit filed in support of
the writ petition, whereas it is specific stand of the Respondents that the remarks of the Chairman. Housing Board was communicated to the land
owners and an endorsement was obtained on 17.4.1986. This endorsement, according to the Respondent is an acknowledgment of the remarks
submitted by the Housing Board under Rule 3(b).
Though in the counter it has been asserted that remarks of the Housing Board dated 16.4.1986 had been served on 17.4.1986, the learned
Addl. Government Pleader is unable to produce any material to substantiate the service of remarks despite grant of opportunities. The files also do
not disclose that the remarks of the Housing Board dated 16.4.1986 had been furnished to any one of the Petitioners. So also the remarks of the
Housing Board dated 24.4.1986 had not been forwarded or furnished to the land owners either prior to the holding of enquiry or at least on the
date of holding the enquiry u/s 5(A). A perusal of the file also would show that the remarks of the Housing Board dated 24.4.1986 had not been
communicated nor copy had been furnished nor even a gist of the said remarks had been furnished to the land owners before or at the enquiry.
The proceedings of the Land Acquisition Officer, which is dated 28.4.1986 proceeds thus:
The remarks of the Chairman was communicated to the land owners in this office endorsement Dl 834/82 dated 17.4.86 and their
acknowledgments obtained. Enquiry under Rule 3(b) was conducted on 24.4.1986 and 28.4.1986. The land owners and the Tamil Nadu Housing
Board representative viz., Asst. Secretary (Legal) were present and heard at the time of enquiry.
Assuming that there had been a communication of the remarks dated 16.4.1986 with reference to the endorsement dated 17.4.1986, but the
Land Acquisition Officer had also received the remarks dated 25.4.1986, which is in continuation of his remarks dated 16.4.1986. Therefore, it is
clear that the remarks dated 2S.4.1986 is the substantial remarks. There is nothing to show that the said remarks dated 25.4.1986 sent by the
Chairman in continuation of his earlier remarks dated 16.4.1986 was forwarded to the Petitioners nor the gist has been communicated to the
Petitioners before 28.4.1986, the date on which the enquiry was conducted. The Petitioners have stated that after the enquiry on 28.4.1986, the
additional remarks or the continuation remarks dated 25.4.1986 was furnished to the Petitioner, which would mean a deprivation of valuable right
of the Petitioners. No purpose will be served by the Land Acquisition Officer handing over a copy of the remarks dated 25.4.1986 after the
conclusion of Section 5 (A) enquiry. Really if the Land Acquisition Officer had served the remarks dated 25.4.1986 prior to 28.4:1986, there
would be some material and the Land Acquisition Officer also would have at least referred to the same in his Section 5A proceedings. The
proceedings of the Land Acquisition Officer dated 28.4.1986 is silent in this respect. Yet, the Land Acquisition Officer had taken into
consideration of both the remarks dated 16.4.1986 as well as 25.4.1986.
The Housing Board has taken nearly one year to forward its remarks. But without communicating the remarks or the gist or copy of the same,
the Land Acquisition Officer had concluded Section 5(A) enquiry, which is in violation of principles of natural justice and total disregard of the
mandatory rule. The counter affidavit in this respect reads thus:
The gist of objections filed at the time of 5 (A) enquiry was sent to the Chairman, Tamil Nadu Housing Board in remarks in Lr. No. Dl/ 834/82,
dated 14.8.8S has overruled the objections of the land owners and requested to proceed further in the matter since the land is required for housing
scheme. The remarks of the Chairman was communicated to the objectors in D-1834/82 dated 17.4.1986 and their objection obtained. The
enquiry under Rule 3(b) was conducted on 24.4.1986 and 28.4.1986. The land owners and the representative of the requisitioning body (viz.)
Asst. Secretary (Legal), Tamil Nadu State Housing Board were present and both were heard. The Chairman, Tamil Nadu State Housing Board in
his letter No. LAI (5)32591/ 85 dated 25.4.1986 has further overruled the objections of the land owners and requested to send the draft
declaration in this case. Hence 5 (A) proceedings was issued on 28.4.1986.
Excepting assertion that the remarks of the requisitioning body were served on the land owners under acknowledgment, no material at all has
been placed nor the files disclose any material or acknowledgment by anyone of the land owners. That apart, the remarks of the Housing Board
dated 25.4.1986 has weighed with the Land Acquisition Officer and the counter also proceeds as such that the Housing Board had overruled the
objections by its remarks dated 25.4.1986, which would mean that the remarks of the Housing Board dated 25.4.1986 is the material one based
upon which the Land Acquisition Officer and the Government have overruled the objections. There is not even an averment to show that the said
remarks of the Housing Board dated 25.4.1986 had been forwarded to the land owners nor copy nor the gist of the same had been forwarded.
Therefore it is obviously clear that Rule 3(b) had not been complied with on the facts of the case.
In this respect it would be sufficient to refer to the Division Bench judgment of this Court in Ramanujam N.D. v. Collector of Madras and 2
Ors. reported in 1994 (1) LW 519. The Division Bench, consisting of Srinivasan and Abdul Hadi JJ., analysed Rules 3(b) and (c) of the Tamil
Nadu Land Acquisition Rules and held that it is a mandatory requirement to communicate the reply or remarks received from the requisitioning
body to the land owner and the failure vitiates the proceedings u/s 5(A) of the Act and consequently, Section 4 (1) Notification as well as Section
6 Declaration are vitiated. In this respect, the Division Bench held thus:
One other submission made by learned Counsel for the Petitioners in both the writ petitions is that the mandatory requirements of Rule 3(b)
framed by the Government of Tamil Nadu u/s 55(1) of the Act, have not been Complied with. In this regard, both the Counsel rely on Kadirvelu
Mudaliar v. State of Tamil Nadu 1987 W.L.R. 182. The said Rule 3(b) provides as follows:
If any objections are received from a person interested in the land and within the time prescribed in Sub-section (1) of Section 5-A the Collector
shall fix a date of hearing the objections and give notice thereof to the objector as well as to the department or company requiring the land, where
such department is not the Revenue Department. Copies of the objections shall also be forwarded to such department or company. The
department or company may file on or before the date fixed by the Collector a statement by way of answer to the objections and may also depute
a representative to attend the enquiry.
The said decision of this Court also held, following earlier decisions, as follows:
Coming to the facts of the present case, on the date when the enquiry u/s 5A was held, namely, 12th December, 1975, the remarks of the
requisitioning body were not obtained, much less furnished to the Petitioner to afford him an opportunity to make his representation over the same
and the remarks of the requisitioning body were obtained on 25m March, 1978 long after the enquiry u/s 5A and even though these remarks were
communicated to the Petitioner, there was no fresh enquiry held to find out the tenability or otherwise of the prosecution of the acquisition
proceedings of the basis and consideration of the objections of the Petitioner, the remarks of the requisitioning body and the further representations
of the Petitioner over the remarks. Hence, it has got to be held that the mandate of the rule stood violated. This obliges this Court to
discountenance the prosecution of the acquisition proceedings after the stage of notifications u/s 4(1).
In the present case, in the counter that has been filed in W.P. No. 10420 of 1985 it has been averred as follows:
Regarding paras 6 and 7 of the affidavit it is submitted mat the 5A enquiry which was posted to 30.10.82 was adjourned to 10.11.82 on the
request of the advocate for the writ Petitioner. No representative of the Writ Petitioner has appeared for enquiry on 10.11.82 as contended in the
petition. But the writ Petitioner has sent his objections in writing by a letter dated 8.11.82 which was sent to the Commissioner, Corporation of
Madras for remarks and the reply obtained.
It has also been averred subsequently in paragraph 22 thus:
Regarding ground (1) it is submitted that the objections of the Writ Petitioner during 5A enquiry were examined and the opinion of the
Commissioner, Corporation of Madras was also obtained. The objections were overruled vide this office Proceedings K.J. 1114/82 dated 8.2.83
and then only further action taken to send Draft Declaration to Government.
From this, what can be gathered is only that the objections of the Petitioner in W.P. No. 10420 of 1985 by his letter dated 8.11.1982 were sent to
the Commissioner of Corporation of Madras for remarks and that reply was obtained from the Commissioner. But, it is not mentioned in the
counter affidavit when actually the said objections were sent to the Commissioner of Corporation of Madras and when actually the abovesaid reply
was obtained. That apart it is also not averred whether the said reply was communicated to the Petitioner and whether there was continuation of
Section 5A enquiry pursuant to the abovesaid reply received from the Commissioner. The only allegation is that after the enquiry on 30.10.1982
when the matter was adjourned to 10.11.1982, the Petitioner did not appear for enquiry on 10.11.1982. There is no record to show that the reply
of the requesting authority was communicated to the Petitioners. That there was no Section 5A enquiry after the abovesaid reply was received
from the Commissioner of Corporation of Madras. Therefore, it is clear that the requirements of Rule 3(b) have not been fully complied with.
11-A. This finding applies to W.P. No. 4836 of 1987 also. As already noted, there also, in the affidavit in support of the said writ petition, the
Petitioner raised specifically the contention thus:
The mandatory requirement of Rule 3(b) has not been followed in that on the objections raised by the Petitioner, the remarks offered either by the
Corporation or by the M.M.W.S.S. Board has not been communicated to the Petitioner nor an enquiry has been conducted giving an opportunity
of personal hearing to the Petitioner.
In this, and in fact to the other factual contention raised in the said supporting affidavit, there is no counter affidavit at all filed by the Respondents
nor learned Counsel for the Respondents could demonstrate to us through the relevant files that the abovesaid requirements have been strictly
followed as stated above. As noted already, this Court has repeatedly observed that after the remarks of the requisitioning body were obtained,
they should be communicated, to the Petitioner and there should, thereafter, be an enquiry u/s 5 A to find out the tenability or otherwise of
prosecution of acquisition proceedings on the basis of the consideration of the objections of the Petitioner, the remarks of the requisitioning body
and further representations of the Petitioner over the remarks. Therefore, we have necessarily to hold that the mandate of the abovesaid rule stood
violated in the present case also.
The learned Counsel relied upon the Division Bench judgment of this Court in a batch of writ petitions in W.P. Nos. 10351/ 82, 10374/82,
etc., dated 18.1.88. In the said batch of writ petitions, the Division Bench consisting of Mohan and Swamikannu, JJ., had occasion to examine
Rule 3(b) and held that the said rule is mandatory and it was laid down by the said Division Bench that the law requires that at the time of enquiry,
the land owners should know the remarks of the requisitioning body and failure to furnish the same is a deprivation and a clear violation of Rule
3(b). In this respect, the Division Bench held thus:
At this stage, it will be useful to set out Rule 3(b) itself.
3 (b) If any objections are received from a person interested in the land and within the time prescribed in Sub-section (1) of Section 5A, the
Collector shall fix a date for hearing the objections and give notice thereof to the objector as well as to the department or company requiring the
land where such department is not the Revenue Department. Copies of the objections shall also be forwarded to such department or company.
The department or company may file on or before the date fixed by the Collector a statement by way of answer to the objections and may also
depute a representative to attend the enquiry.
Hence, this is a case in which the procedure adopted by the authority in not following Rule 3(b) strictly is bad because as rightly contended by
Mrs. Nalini Chidambaram, the Housing Board remarks were relied on the Enquiry Officer while making a report to reject the objection of the
Petitioner. It is on the representation of the Enquiry Officer dated 3rd March, 1978 that the Government was satisfied and issued the declaration
u/s 6 on 23.3.1978. The law requires that at the time of enquiry, the Petitioner should know as to how the beneficiary under this acquisition,
namely, Housing Board has to say about the purchase.
* * *
Therefore, I am of the view that what is contemplated is that as and when the objections are filed by the land owner, the objections are forwarded
to the requisitioning body, which offer its remarks and thereafter an enquiry takes place on the statements of the land owner and the remarks of the
requisitioning body, which undoubtedly will have to be made known to the land owner. That this is a full-fledged enquiry is also clear from the fact
that the Collector is authorised to record evidence that may be produced in support of the objection. Therefore, the respective parties may
produce evidence. How can one party, namely, the land owner produce evidence without knowing the remarks of the other side or the contentions
of the other side. If this is not so, the entire enquiry will turn out to be a farce or a mere mockery which will completely negative the purpose and
the spirit of the statutory enquiry.
We respectfully agree with the consistent views taken by the said Division Bench of this Court following the Apex Court judgment holding that
Rule 3(b) is mandatory. On the facts of the case, we hold that the mandatory Rule 3(b) had been violated and the impugned proceedings are liable
to be quashed on that score.
We take up the next contention for consideration. The contention is, whether the objections raised, which are substantial in nature with respect
to Section 5A enquiry had been overruled without considering with due care and regard to law and in particular to Section 5A of the Act. Whether
the competent authority had taken a decision to overrule the objections and forward the proposals or the competent authority had abdicated itself
to the dictation of the requisitioning body?
Sub-section (2) of Section 5A reads thus:
(2) Every objection under Sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of
being heard (in person or by any person authorised by him in this behalf) or by pleader and shall, after hearing all such objections and after making
such further inquiry, if any, as he thinks necessary, (either make a report in respect of the land which has been notified u/s 4, Sub-section (1), or
make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the
objections, together with the record of the proceedings held by him, for the decision of that Government). The decision of the (appropriate
Government) on the objections shall be final.
On a plain reading of this Sub-section, it is clear that the Land Acquisition Officer, after affording an opportunity to the objector and after hearing
all sides and after making such further enquiry which he thinks necessary either make a report in respect of the land which has been notified to the
appropriate Government containing his recommendations on the objections together with the record of the proceedings held by him for the
decision of the Government. The exact nature of enquiry must be objective. The Land Acquisition Officer has to send his recommendations to the
State Government and the Land Acquisition Officer is expected to make a report containing his recommendations on the objections.
It is obligatory for the Land Acquisition Officer to make a report or recommendation and forward the same to the appropriate Government. It
is for the Government to accept the report or otherwise consider the entire matter and thereafter either make a declaration or decline to make a
declaration after examining the report and the papers forwarded therewith by the Land Acquisition Officer. Hence, it is obligatory on the part of
the Land Acquisition Officer to consider the objection as well as the remarks of the requisitioning body and make his independent assessment and
submit his report to the State Government containing his recommendations on the objections. While making such recommendations, the Land
Acquisition Officer has to assess the materials placed before him by the land owner as well as the requisitioning authority, and if the Land
Acquisition Officer without his independent assessment or failed to consider but addicted himself to the remarks submitted by the requisitioning
authority and forwards the report to the Government, it is not a report in the eye of law and, consequently, Section 5A proceedings stands vitiated.
In the present case, it is essential to incorporate the portion of the 5A enquiry report dated 28.41986 submitted by the Land Acquisition
Officer to the State Government.
The gist of objections received at the time of enquiry was sent to the Chairman, Tamil Nadu Housing Board for his remarks vide this office
D.l.834/82 dt. 14.8.85. The Chairman, Tamil Nadu Housing Board in his letter viz., cited has over ruled the objections of the land owners and
requested to acquire the land as the lands are essentially required by the Tamil Nadu Housing Board for implementing housing scheme. The
remarks of the Chairman, was communicated to the land owners this office endorsement D. 1.834/ 82 dt. 17.4.86 and their acknowledgments
obtained. An enquiry under Rule 3(b) was conducted on 24.4.86 and 28.4.86. Both the land owners and the Tamil Nadu Housing Board
representative viz., the Assistant Secretary (Legal) were present and heard at the time of enquiry.
The Chairman, Tamil Nadu Housing Board over ruled their further objections also of the land owners and requested to acquire the entire land and
instructed to send the Draft Declaration proceedings to Government for approval.
In view of the recommendation of the Chairman. Tamil Nadu Housing Board mat the land is required for Tamil Nadu Housing Board and the
objections raised by the land owners were over ruled, it was decided to submit the Draft Declaration proposals for the entire extent of 45 grounds
160 Sq. Feet.
(emphasis supplied)
On a reading of the report, it is clear that the Land Acquisition Officer without independently assessing the merits of the objections and the
remarks forwarded by the requisitioning authority had merely reported that the Chairman, Tamil Nadu Housing Board over-ruled the objections of
the land owners and had instructed the Land Acquisition Officer to send the Draft Declaration to the Government for approval. It is rightly pointed
out that the Land Acquisition Officer had merely abdicated his functions enjoined upon him under Sub-section (2) of Section 5A and had
submitted himself to the dictation of the requisitioning body, namely, The Chairman, Tamil Nadu Housing Board. The report in no way discloses
the assessment of the objections vis-a-vis the remarks of the requisitioning body by the Land Acquisition Officer and, thereafter forwarding his
recommendations on the objections together with the record of the proceedings, which alone would be in conformity with Sub-section (2) of
Section 5A. In this case, the Land Acquisition Officer''s recommendation or report is not a report at all on the objections submitted by the land
owners, but it is an abdication of his reporting or recommendation to the dictation of the requisitioning body, namely, the Chairman, Tamil Nadu
Housing Board.
When the statutory provisions, namely, Sub-section (2) of Section 5A requires the Land Acquisition Officer to consider the objection and
submit his recommendation on the objections, the Land Acquisition Officer is expected to assess the objections independently and objectively with
reference to the remarks received from the requisitioning body, which alone would satisfy Sub-section (2) of Section 5A. Any deviation would
vitiate the report and it is not a report in the eye of law. The decision of the Government u/s 5A (2) is final and normally this Court would not
interfere with the recommendations of the Land Acquisition Officer if in the recommendations the objections are fully considered by the Land
Acquisition Officer and after giving reasonable opportunity to the objectors and, thereafter, the recommendations were made. A perusal of Section
5A enquiry report would show that in objections 1 and 2, the enquiry officer had merely set out the name of the owner and in respect of his survey
number or sub-division and their gist of objections. Only in the last portion, which is extracted above is his report if at all.
When the objections were not duly considered by the Land Acquisition Officer objectively or that the objections were disregarded and that the
Land Acquisition Officer abdicated his recommendations to the dictation of the requisitioning body, which recommendations not being in
conformity with Section 5A (2), is no report conformity with Section 5A (2), is no report at all as there is no objective assessment with respect to
the objections vis-a-vis the remarks of the requisitioning body, who has proposed the acquisition, then in the eye of law there being no
recommendation and objections not having been referred to or adverted to or considered by the Land Acquisition Officer in the manner prescribed
by Sub-section (2) of Section 5A. Hence we hold that the report of the enquiry officer stands vitiated.
As there is a patent failure to consider the objections put forward by the land owners, as there is no independent assessment of the objections
vis-a-vis the remarks submitted by the requisitioning body and as the Land Acquisition Officer had submitted to the dictation of the requisitioning
body without reference to the objections, in law the action of the Land Acquisition Officer in forwarding his report recommending the acquisition is
not in conformity with Section 5A (2) and there is no valid report in the eye of law. Therefore, there cannot be a valid declaration and the
declaration issued u/s 6 in this respect is liable to be quashed.
While construing Sub-section (2) of Section 5-A, the Apex Court in Shyam Nandan Prasad and Others Vs. State of Bihar and Others, held
thus:
The proceeding before the Collector is a blend of public and individual enquiry. The person interested, or known to be interested, in the land is to
be served personally of the notification, giving him the opportunity of objecting to the acquisition and awakening him to such right. That the
objection is to be in writing, is indicative of the fact that the enquiry into the objection is to focus his individual cause as well as public cause. That at
the time of the enquiry, for which prior notice shall be essential, the objector has the right to appear in person or through pleader and substantiate
his objection by evidence and argument. And lastly, since the decision of the Collector may turn out to be final, unless interfered with by the
Government, suo motu or an application, the Collector''s decision is that of a quasi-judicial authority, arrived at by quasi-judicial methods.
* * *
At the pre-Section 6 stage, besides the mode of publications at various places where the land is situated, personal service of the copy of the
notification is prominently required to be made on the person interested so that he can make objections in writing to the Collector, and on
objections being made, the Collector is obliged to give to the objector opportunity of being heard either in person or by pleader. The Collector is
further obliged to hear all such individual objections, make such further enquiries as necessary and then required to make an appropriate decision
reporting the same to the Government. The decision of the Collector is supposedly final unless the appropriate Government chooses to interfere
therein and cause affectation, suo motu or on the application of any person interested in the land. These requirements obviously lead to the positive
conclusion that the proceeding before the Collector is a blend of public and individual enquiry. The person interested, or known to be interested in
the land is to be served personally of the notification, giving him the opportunity of objecting to the acquisition and awakening him to such right.
That the objection is to be in writing, is indicative of the fact that the enquiry into the objection is to focus his individual cause as well as public
cause. That at the time of the enquiry, for which prior notice shall be essential, the objector has the right to appear in person or through pleader and
substantiate his objection by evidence and argument. And lastly, since the decision of the Collector may turn out to be final, unless interfered with
by the Government, suo motu or on application, the Collector''s decision is that of a quasi-judicial authority, arrived at by quasi-judicial methods.
In the light of the foregoing discussions and while following the decision of the Apex Court, we hold that this point has to be answered in favour
of the writ Petitioners and against the Respondents and consequently, the declaration u/s 6 deserves to be quashed. Further, in this case,
declaration u/s 6 has been made on the last date, Hence, practically there could be no fresh declaration even if the matter is remitted back to the
Respondents for an enquiry and as a consequence Section 4(1) notification also will not survive.
The action of the Government in accepting the report may be an administrative action, but in as much as the action of the land acquisition
officer has civil consequence in the nature of the depriving a person/of his property, the enquiry conducted by the Land Acquisition Officer u/s 5A
has to be regarded as a quasi-judicial enquiry though his report may be an administrative report on which the satisfaction of the Government has to
be recorded. The Land Acquisition Officer acts at least quasi-judicial if not wholly judicial in conducting the enquiry and he is required to send his
recommendation to the Government on the basis of his finding together with the record of the proceedings for the ultimate decision by the
Government.
The report submitted by the Land Acquisition Officer is an administrative report and relying upon it the Government makes its decision u/s 6.
Even if the report, an administrative report, the land acquisition officer being an administrative authority, should consider all the relevant aspects as
well as the objections submitted by the land owners. The scope of the enquiry u/s 5A is whether the land sought to be acquired is needed for a
public purpose and whether the land is suitable for the purpose. The power to hear the objection u/s 5A vests with the land acquisition officer and
not with the appropriate Government. The requirement of Section 5A is when a person''s property is proposed to be acquired he must be given a
liberty to show cause against it. The land acquisition officer has to consider the objections vis-a-vis, the remarks, if any, submitted, and thereafter,
he has to forward his recommendations.
On the facts of the case and as seen from the proceedings of the land acquisition officer u/s 5A, the land acquisition officer had declined to
exercise the jurisdiction vested u/s 5A (2) as none of the objections raised had been considered by the land acquisition officer apart from the fact
that the land acquisition officer had merely subjected himself to the dictation of the requisitioning body. The resultant position, therefore follows,
would be that the declaration published u/s 6 deserves to be quashed and there is no escape.
In Shri Mandir Sita Ramji Vs. Lt. Governor of Delhi and Others, it has been held thus:
As the objection raised questions of fact, the Land Acquisition Collector should have enquired into them and should have made his
recommendation as provided in Section 5-A. The failure of the Land Acquisition Collector to inquire into the objection after giving the Appellant
an opportunity of being heard would show that he declined to exercise his jurisdiction under the section. As we said, the fact that the ultimate
decision has to be made by the State Government did not relieve the Collector from his statutory duty to enquire into the objection and make the
recommendation. We see no reason why the Division Bench should have departed from the procedure prescribed by the statute. The observation
of the procedure laid down by statute before depriving a person of his property is necessary to generate the feeling that rule of law prevails in this
country. When a procedure is prescribed by the legislature, it is not for the court to substitute a different one according to its notion of justice.
When the legislature has spoken, the judges cannot afford to be wiser.
In this case, though there had been an enquiry, but the remarks of the requisitioning body had not been furnished before commencement of the
5A enquiry and the land acquisition officer did not consider the objections, but simply subjected himself to the dictation of the Housing Board and
submitted his report. The present case is the worst situation than the omission pointed out by the Apex Court in Shri Mandir Sita Ramji Vs. Lt.
Governor of Delhi and Others,
The next point to be considered relates to:
i) Whether the acquisition of two bungalows with the land for the purpose of the Housing Board of a bona fide action or an arbitrary action tainted
with legal malice?
ii) Whether the acquisition of bungalows and the adjacent land for the development of the area by the Housing Board is for a bona fide exercise of
power of eminent domain and for a public purpose?
In the present case, admittedly there exist two bungalows of considerable extent. The land is located in the heart of the city of Madras on
Nungambakkam High Road surrounded by Star Hotels. Office of the Commissioner of Income Tax & Central Excise, Commissioner of Hindu
Religious and Charitable Endowments, various other leading Export Promotion Council, Commercial Houses, Regional Office of the Indian Oil
Corporation, Kothari''s Office Complex and various other Multinational Companies as well as leading Indian companies which have their Branch
Offices or Registered Offices or establishments and it is a posh commercial locality as it is prestigious to have an office on Nungambakkam High
Road, which has since been renamed as Mahatma Gandhi Road.
Concedingly even before submission of proposal, there exists two bungalows surrounded by vacant land. It is not as if the land is on the
outskirts of the city of Madras, which required a development for purpose of Housing Board colonies promoted for housing of the low income or
economically weaker section or higher income group, etc. It is not as if the land is under-developed nor the locality remains undeveloped.
Therefore, the purpose set out u/s 4(1) Notification that the land is required for the purpose of development of the area for consideration of multi-
storeyed buildings cannot be sustained as the area is an already developed area with two bungalows and there is no controversy in this respect. It
is not as if the land is vacant and lying idle. But on the other hand, there exists two bungalows of substantial measurements and value. Admittedly
the bungalows are in occupation of the owners and being ;used. There is no controversy in this respect. The Section 4(1) Notification as well as
Section 6 Declaration also refers to two bungalows that exists. If mat be so, the question mat the Housing Board has proposed to develop the area
will not reflect the true purpose for which the Housing Board had proposed the acquisition, but the proposal is with some oblique motive or it has
been initiated at the whims and fancies of the then Chairman of the Housing Board.
In fact on the Petitioner''s representation, there was a thorough examination by the Collector of the city of Madras as well as the Commissioner
of Land Administration, Board of Revenue. The said authorities submitted a report, a portion of which has already been extracted above. The
penultimate portion of the report reads thus:
You may readily see mat the above factors and the objections put forth by the land owners are very strong, genuine and mat they militate
decisively against the proposal to acquire these lands. Proper procedure has not been followed by the Land Acquisition Officer in publication of
notices.
The Tamil Nadu Housing Board is a service organisation intended to provide housing to the people. For it to acquire valuable lands at huge cost
to set up shops and offices (presumably to be rented out) can hardly be justified even in principle.
In this particular case, the Tamil Nadu Housing Board''s proposal will deprive the metropolis of the facility of an ultra-modern hospital and health
service for which there is far greater need new and in the future than for shops and offices.
In view of the above I strongly recommend dropping forthwith me proposal for acquisition of the lands in R.S. No. 26/3 of Nungambakkam
village, Egmore-Nungambakkam Taluk.
I enclose herewith the proposals of the Tamil Nadu Real Estates Limited for the proposed modern hospital of the S.A.A. Ispahani Trust with a
copy of Collector''s letter No. D1.834/82 dated 6.5.86 and with its enclosure.
It may be that the land owners most of them are leading Medical Practitioners or family members have proposed to put up a multi-speciality
ultra-modern hospital, which has been found to be genuine, that does not mean that the Housing Board would be justified in acquiring the land on
the pretext of developing the area and proceeding as if the area is under-developed or yet to be developed, but on the other hand, the area is a
well developed one and a post locality and there exists two bungalows.
While discussing the proposal and the varying stand taken by the Chairman of Housing Board, with respect to the purpose, from time to time,
we have to point out that the proposal is not for a genuine cause or a bona fide action resorted to achieve public purpose, therefore, in our
considered view, the acquisition under the present case is not for a bona fide public purpose, but it has been initiated at the instance of the
Chairman of the Housing Board without reference to the present condition of the lands, the existence of the two bungalows and the posh locality in
which the property and the bungalows are located. The State Government also did not take into consideration of the report received from the
Collector and Land Commissioner and had not chosen to drop the acquisition proceedings, and on the other hand proceeded further in the matter.
Therefore, it is clear the acquisition in the present case, at the instance of the Housing Board is not a bona fide action, it is not for a bona fide public
purpose and the acquisition has been resorted to at the instance of the then Chairman of the Housing Board to satisfy his whims and fancies.
The proposal as well as decision and the Notification and Declaration are not bona fide exercise of power. Though it cannot be held that there
is no malice, but on the facts of the case, it is not a bona fide exercise of power. The acquisition in the present case is not for extension of a public
street or highway or a railway line or other projects, whose alignment or course cannot be changed easily or altered, but it is for development of
the land by the Housing Board. Hence, we see no justification to sustain the claim of the Housing Board or the Declaration issued by the State
Government in the acquisition of existing bungalows thereby denying the owners valuable bungalows and latter putting up multi-storeyed
commercial complex and dispose of the same by the Housing Board cannot be held to be a bona fide action and such an action is impermissible
even under the Tamil Nadu State Housing Board Act, as already pointed out.
That apart, the Notification u/s 4(1) as well as Section 6 Declaration proceeds as if it is a Government land and at the same time name of the
Petitioners have been set out as persons interested. It is therefore clear that the Respondents have no specific stand. If the land belongs to the
Government or if the land in question is vested with the Government, then the question of acquisition under the Land Acquisition Act will not arise.
If the land belong to the Petitioners, then there is no reason or rhyme at all to describe the land as Government bungalows and land. Hence this
contention has to be sustained.
In the forgoing circumstances, the impugned Notification u/s 4(1) as well as Section 6 Declaration issued by the Government are quashed.
In the result, the impugned notification u/s 4(1) and the Declaration u/s 6 are quashed and the writ petition is allowed with cost of Rs. 5,000/-
(Five Thousand only). Consequently, connected W.M.P. is closed.
[This writ petition having been posted for being mention on Monday the twentieth day of July 2001 in the presence of the aforesaid Advocates, the
Court made the following Order:]
At request of the learned Special Government Pleader, the matter is listed today for being mentioned. She makes a request to delete the direction
regarding the cost in the order dated 23.7.2001 in this writ petition.
Though Mr. Balachandran, learned Counsel for the Petitioners has got some reservations, ultimately, he represented that he is leaving the matter
to the Court.
Taking into consideration of the entire matter, we order deletion of payment of costs ordered on 23.7.2001.