T.R.Boopalan &
Ors. Vs. T.Nadu State Hng. Board and Ors. [2008] INSC 1331 (7 August 2008)
Judgment
SUPREME COURT OF
INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4926 OF 2008 @ S.L.P.
(CIVIL) NO.2352 of 2007 T.R. Boopalan & Others ...Appellants Tamil Nadu
Housing Board and others ...Respondent
Altamas Kabir, J.
1.
Leave
granted.
2.
The
appellants herein claim to be the owners of a plot of land measuring 0.81 acres
comprised in Survey No.188/4 in Thiruvanmiyur village falling under
Chengalpattu District, now part of Mylapore Triplicane Taluk, Chennai District.
The said 2 land which was the subject matter of a Notification under Section
4(1) of the Land Acquisition Act, 1894, hereinafter referred to as "the
L.A.Act", issued pursuant to G.O.MS 36/Housing, published by the Tamil
Nadu Government in the Official Gazette on 19.2.1975. It is the case of the
appellants that on 28.3.1983 an Award was made in respect of the said lands
which was registered in the name of the appellants.
3.
In
1991, the appellants filed Writ Petition No.16207 of 1991 challenging the
acquisition proceedings in respect of Survey No.188/4 measuring 0.81 acres.
According to the appellants, the said writ petition was allowed and the
Notification under Section 4 (1) of the L.A. Act in respect of Survey No.188/4
of the aforesaid village was quashed. It appears that thereafter it was
discovered by the appellants that through inadvertence the measurement of the
land had 3 been shown in the writ petition as 0.81 cents instead of 0.81 acres
and an application was thereupon made before the High Court to correct the
mistake and to amend the relief in respect of 0.81 cents to 0.81 acres since
there was no dispute regarding the same and the correct figure had been
mentioned both by the Tamil Nadu Housing Board and the State of Tamil Nadu.
The said application
for amendment of the relief was dismissed on 23.2.1999 by the High Court on the
ground of laches.
4.
Subsequently,
the appellant applied to the Tamil Nadu State Housing Board for issuance of a
"No Objection Certificate" in respect of the lands covered by Survey
No.188/4 to enable the appellants to raise construction thereupon. It appears
from the records that an inquiry was conducted into the status of the land and
in a report received from the District Revenue Officer, LA, Tamil Nadu 4
Housing Board Schemes, it was revealed that the Government machinery was
hesitant to take any further action to question the correctness of the judgment
of the High Court allowing the appellants' writ petition. On the basis of the
above, the appellants appear to have made an application to the Tamil Nadu
State Housing Board for grant of a "No Objection Certificate" in
respect of the lands comprised in Survey No.188/4 for the purpose of raising
constructions thereupon. As the same was rejected, the appellants filed a fresh
writ petition before the Madras High Court, being Writ Petition No.272 of 2000,
on 10.1.2000, for a direction upon the authority concerned to issue a "No
Objection Certificate" in respect of the aforesaid land consequent upon
the order passed in the earlier Writ Petition. The High Court directed the
respondents to consider the 5 representation of the appellants and to pass
orders in accordance with law.
5.
The
Respondent No.1 preferred an appeal against the order of the learned Single
Judge, which was dismissed on 10th April, 2003, on the ground of delay. As the
matter was not proceeded with further, the order of the learned Single Judge
became final between the parties. The appeal filed by the Respondent No.2 was
also dismissed.
Thereafter, on 13th
February, 2004, the Tamil Nadu State Housing Board offered to give a "No
Objection Certificate" to the appellants for 0.81 cents only.
6.
The
appellants were constrained to file a fresh Writ Petition, being W.P. No. 9488
of 2004, on 5th April, 2004, for a direction upon the Respondent No. 1 to issue
a "No Objection Certificate" to the appellants in respect of the
entire 0.81 acres comprising Survey No. 188/4 of Thiruvanmiyur. The 6 writ
petition was allowed on 16th August, 2004, to do substantial justice to the
appellant without being hindered by technicalities.
7.
The
Tamil Nadu State Housing Board preferred Writ Appeal No. 547 of 2005 against
the judgment and order of the learned Single Judge which was allowed by the
Division Bench on 31st January, 2007, upon holding, inter alia, that the
appellants herein were entitled to relief only to the extent of the land
indicated in the Single Judge's order and that equity could not be applied to one
of the parties alone. The Division Bench also held that it could not ignore the
dismissal of the appellants' application for amending the said order which had
also attained finality as no appeal had been preferred against the same.
8.
On
behalf of the appellants, it was submitted by Mr. Sundaram, learned senior 7
counsel, that the Division Bench of the High Court failed to consider the
appellants' case in its true perspective and allowed itself to be swayed by the
fact that the decision of the learned Single Judge was rendered on the basis of
a judgment which had been overruled. The Division Bench of the High Court
relied upon the principle that if a judgment is rendered on the basis of a
decision, which had been overruled, any decision taken on the basis of the
overruled judgment will be void. Mr. Sundaram submitted that the said principle
would have no application to the facts of the present case since the Division
Bench had itself concluded that the decision in the earlier case had become
final between the parties since the appeal preferred therefrom had been
dismissed.
9.
Mr.
Sundaram urged that in the present case, the only question which requires an
answer 8 is whether having regard to the fact that the Section 4(1)
Notification in respect of Survey No. 188/4 had been quashed in the earlier
proceedings, the "No Objection Certificate" asked for by the
appellants could be confined only to 0.81 cents and not the entire land
comprised in Survey No.188/4. It was submitted that it was the understood case
of all the parties that the "No Objection Certificate" had been asked
for in respect of the entire land comprised in Survey No. 188/4 and that the
Writ Petition was filed for a direction on the Tamil Nadu State Housing Board
for issuance of such "No Objection Certificate" for the entire land,
though through inadvertence the area in the Writ Petition was referred to as
0.81 cents in place of 0.81 acres. It was submitted that the same would be
evident from the counter-affidavit filed on behalf of the Housing Board.
10.
Mr.
Sundaram referred to a copy of Tamil Nadu Government Gazette dated 26th March,
1975 containing details of the lands acquired for the purpose of the Tamil Nadu
Housing Board, which includes Survey No. 188/4 showing the extent of the area
comprised in the said Survey as 0.81 acres.
11.
In
addition to his aforesaid submissions, Mr. Sundaram also pointed out that in
the earlier writ petition filed by the appellants, the learned Single Judge had
quashed the Notification under Section 4(1) of the Land Acquisition Act, in its
application to Survey No. 188/4 in its entirety. Once the entire land comprised
in Survey No. 188/4 stood released from the acquisition proceedings, the
appellants were free to apply for a "No Objection Certificate" to the
Respondent No.1 for the entire lands and the respondent No.1 was not entitled
to confine the grant of such "No 10 Objection Certificate" only to
the area mentioned in the Writ Petition.
12.
It
was submitted that the Division Bench of the High Court erred in reversing the
Judgment of the Learned Single Judge which had taken a realistic view of the
matter in order to do justice between the parties.
13.
On
behalf of the Tamil Nadu State Housing Board, Mr. Krishna Murthy, learned
senior advocate, attempted to justify the view taken by the Division Bench upon
holding that the prayer made in the Writ Petition by the appellants herein had
been granted and they could therefore have no grievance on such score. In fact,
the Tamil Nadu State Housing Board had offered and was always willing to grant
the "No Objection Certificate" in respect of 0.81 cents of land in
respect of which the petitioner's Writ Petition had been allowed.
14.
Mr.
Krishna Murthy reiterated the reasoning of the High Court indicating that what
is sauce for the goose is sauce for the gander.
He urged that while
after the appeal preferred by the Respondents against the order of the learned
Single Judge quashing the Section 4(1) Notification in respect of Survey No.
188/4 was dismissed on the ground of delay, no further steps were taken in the
matter, similarly, when the appellant's application for correction of the area
of land mentioned in the Writ Petition was rejected, no further steps were also
taken by the appellants against the said order.
In other words, as in
the case of the Respondents so also in the case of the appellants, the order of
the learned Single Judge rejecting the application for correction of the area
of land in the Writ Petition had also become final and the appellant was,
therefore, disentitled from 12 asking for the same relief in a round about
manner. Mr. Krishna Murthy conceded that the land comprised in Survey No. 188/4
measured 0.81 acres, but according to him, without proper evidence, it could
not be taken for granted that the appellants were the only persons entitled to
the entire land comprised in Survey No. 188/4. It was urged that in such a
scenario, the Division Bench had quite rightly set aside the order of the
learned Single Judge for the aforesaid reasons.
15.
Having
heard learned counsel for the respective parties, we are unable to agree with
the reasoning of the Division Bench of the High court in allowing the Writ
Petition filed by the Respondent No.1 herein.
16.
There
is no dispute with regard to the fact that the land comprised in Survey No. 188/4
measures 0.81 acres. There is also no dispute that in deciding the Writ
Petition 13 filed by the appellants challenging the Notification under Section
4(1) of the Land Acquisition Act, 1894, in respect of Survey No. 188/4,
comprising 0.81 acres, the said notification was quashed.
17.
It
is in the said circumstances that the appellants' prayer for grant of "No
Objection Certificate" was considered by the learned Single Judge in the
Writ Petition filed by the appellants herein. When the parties are agreed upon
the basic fact that the Notification in respect of the entire Survey No.188/4
was quashed, there could be no justification in taking a technical objection
that since the Writ Petition mentioned the relief sought by the writ
petitioners/appellants to be in respect of 0.81 cents, the appellants must be
held to such prayer, even if apparently a mistake had been committed. While a
comparison had been drawn between the failure of the 14 respondents to take
further steps in respect of the Order passed by the High Court quashing the
Section 4(1) Notification in respect of Survey No. 188/4 and the failure of the
appellants to take further steps on the dismissal of their application for
correction of the relief prayed for in the Writ Petition by amending the area
mentioned in the Writ Petition for which relief has been sought, in our view,
such a comparison is not well-founded. While in the first matter, a decision of
a Single Judge on merits was being questioned in appeal, in the second matter,
there was no challenge to the merits of the decision of the learned Single
Judge but an application had been made merely for correction of an error in the
Writ Petition itself with regard to the area for which relief was sought.
1. In our view, the
two above-mentioned cases stand on different footings and cannot be compared.
Furthermore, there is force in Mr. Sundaram's other limb of submission that
when the Notification under Section 4(1) of the L. A. Act, with regard to
Survey No. 188/4 had been quashed in respect of the entire lands comprising
0.81 acres, there was no reason for the respondent No.1 to limit the grant of
"No Objection Certificate" only to the area mentioned in the Writ
Petition. Since the entire lands stood released from the acquisition
proceedings, we are of the view that the appellants were entitled to apply for
"No Objection Certificate" in respect of same but the Respondent
No.1, for reasons best known to it, chose to confine itself only to the area of
land mentioned in the Writ Petition, which according to us was clearly an
unintended error.
1. In such
circumstances, we are unable to sustain the decision of the Division Bench,
which is set aside. We, therefore, restore the decision of the learned Single
Judge by which the Writ Petition was allowed.
1. The present appeal
is, accordingly allowed, but there will be no order as to costs.
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