The Commissioner,
Corporation of Chennai Vs. R. Sivasankara Mehta and another
J U D G M E N T
GANGULY, J.
1.
We
have heard learned counsel for the parties including the learned senior counsel
appearing for Chennai Metro Rail Limited. The Interlocutory Application Nos. 5-6
filed on behalf of the Chennai Metro Rail Limited for being impleaded are allowed.
2.
The
Commissioner, Municipal Corporation of Chennai is in appeal before us, impugning
the judgment and order passed by the Division Bench of the Madras High Court dated
18.1.2005, whereby the learned Judges of the Division Bench affirmed the order
of the learned Single Judge dated 24th September, 1999 on two writ petitions filed
by the land owners who are respondent(s) herein. The facts leading to this case
are that by notification dated 3rd January, 1949 an Award was passed by the Special
Secretary for Land Acquisition, Madras in respect of the land which was acquired
under the provisions of the Land Acquisition Act. It is not in dispute that reference
proceedings were initiated in 1949 itself and upon getting the enhanced
compensation, the land owners did not take the challenge any further. Under Section
16 of the Act, the land acquired, vested in the State in 1962, free from all encumbrances.
Long thereafter, in 1995 representation was made by the respondent(s) herein
for release/re-conveyance of a portion of the land which was acquired in 1949
inter alia on the ground that the appellant-Corporation was not utilising the
same.
3.
On
such a representation, the Government by an Order dated 10th March, 1995 directed
the appellant-Corporation to re-convey a portion of the lands measuring 5
grounds and 416 sq. ft. in R.S. No.324/2 to Thiruvalargal R. Neelakanta Mehta and
R. Sivasankara Mehta and to their legal heirs or their nominees under ex-owner category,
on collection of the compensation amount paid by the government for the acquisition
of lands measuring grounds and 416 sq. ft. in R.S. No. 324/2 with interest after
completing all formalities. After the said order was passed, a representation was
made by the appellant-Corporation to the Secretary, Government of Tamil Nadu, M.A.
and W.S. Department to the effect that the said area can be better utilised for
the purpose of parking of vehicles in view of manifold increase in traffic in that
part of the city. A request was, therefore, made to stay the operation of the notification
relating to re-conveyance for consideration of the request of the Corporation.
4.
Upon
such representation from the appellant-Corporation, the Government of Tamil Nadu
by an Order dated 25th July, 1995 cancelled the order of re-conveyance issued in
G.O. Ms. No.45, M.A. & W.S. dated 10th March, 1995.
5.
This
order of 25th July, 1995 was impugned by the respondent(s) herein by filing two
writ petitions. The learned Single Judge allowed the writ petitions inter alia on
the ground that the Government is bound by provisions of promissory estoppel
and also by reason of the fact that the order of cancellation of re-conveyance
was passed without affording any opportunity of hearing to the land owners. The
said decision of the learned Single Judge was challenged by the present appellant
before the Division Bench of the High Court. The Division Bench of the High Court,
in paragraph 17 of its judgment quoted from the judgment of the learned Single
Judge and in paragraph 19 of the judgment quoted the provisions of Section 48-B
which was introduced by Tamil Nadu Amendment Act, 1996 (Act 16 of 1996). Ultimately,
the Division Bench held that the decision of the Government in rescinding its initial
order of re-conveyance is bad. The Division Bench was not, therefore, inclined to
interfere with the order passed by the learned Single Judge and dismissed the
appeal of the Corporation and affirmed the decision of the learned Single
Judge.
6.
Assailing
both these judgments, learned senior counsel for the appellant urged various contentions
before us. The first question which was urged before us was that at the time when
the exercise was made by the Government for re-conveyance, Section 48-B was not
in existence.
7.
Admittedly,
Section 48-B came on the statute book in 1997 by the Land Acquisition (Tamil Nadu
Amendment) Act, 1996 (being Act 16 of 1997). The assent of the President to the
said Act was received on 14th March, 1997.
8.
Section
48-B runs as follows:- "48-B. Transfer of land to original owner in certain
cases.-Where the Government are satisfied that the land vested in the Government
under this Act is not required for the purpose for which it was acquired, or for
any other public purpose, the Government may transfer such land to the original
owner who is willing to repay the amount paid to him under this Act for the acquisition
of such land inclusive of the amount referred to in sub-section (1-A) and (2) of
Section 23, if any, paid under this Act."
9.
On
perusal of Section 48-B it is clear that the same is not retrospective in operation.
The said provision, which is a departure from Section 48 can apply only
prospectively.
10.
This
Court also considered the purport of that provision in Tamil Nadu Housing Board
v. Keeravani Ammal and Ors., reported in AIR 2007 SC 1691. The learned Judges in
paragraph 11 of Keeravani Ammal (supra) held as follows:- "Section 48-B introduced
into the Act in the State of Tamil Nadu is an exception to this rule. Such a provision
has to be strictly construed and strict compliance with its terms insisted
upon. Whether such a provision can be challenged for its validity, we are not called
upon to decide here."
11.
In
this connection, it is necessary to have a look at provisions of Section 48 of the
Land Acquisition Act, 1894, which was holding the field in 1995, when
re-conveyance was purportedly ordered by the State Government vide its order dated
10.3.1995. Section 48 of the Act is set out below: "48. Completion of acquisition
not compulsory, but compensation to be awarded when not completed.- (1) Except in
the case provided for in section 36, the Government shall be at liberty to withdraw
from the acquisition of any land of which possession has not been taken. (2)
Whenever the Government withdraws from any such acquisition, the Collector shall
determine the amount of compensation due for the damage suffered by the owner in
consequence of the notice or of any proceedings there under, and shall pay such
amount to the person interested, together with all costs reasonably incurred by
him in the prosecution of the proceedings under this Act relating to the said
land. (3) The provisions of Part III of this Act shall apply, so far as may be,
to the determination of the compensation payable under this section."
12.
Under
the provisions of Section 48 of the principal Act, we are afraid, the respondent(s)
has no right of asking for re-conveyance in 1995 inasmuch as it is an admitted case
of the parties that possession of the property was taken over by the State as
early as in 1949 when the Award was passed and the land vested in the State Government
in 1962. Thereafter it was transferred to the Corporation. This aspect of the case,
which goes to the root of the question, was totally missed by the High Court.
13.
Even
if we accept, for the sake of argument, that Section 48-B was available in 1995
when re-conveyance was ordered even then the respondent(s) has no case.
14.
In
a recent judgment rendered by this Court in the case of Tamil Nadu Housing Board
v. L. Chandrasekaran (Dead) by Lrs. and Others reported in 2010 (2) SCC 786, it
has been held that before an order of release can be made under Section 48-B, the
Government must be satisfied that the land which is sought to be released is not
required for the purpose for which it was acquired or for any public purpose.
15.
Admittedly,
in the instant case such condition has not satisfied in view of the representation
of the appellant-Corporation that they need the land for utilising it as parking
space in view of ever increasing growth of car population in the city of Chennai.
This is certainly a public purpose.
16.
The
learned Counsel for the Metro Rail has filed an affidavit to the effect that the
Government is contemplating the use of the said land for its ongoing project
which is again, very much a public purpose.
17.
The
second question is that the land is no longer vested in the Government as it divested
itself by giving it over to the Corporation. Therefore, the conditions stated in
L. Chandrasekaran (supra) are not satisfied herein. So the exercise of power by
the State Government in cancelling its previous order of re-conveyance cannot
be faulted.
18.
No
case of malafide or perversity has been made out in the writ petitions. The
learned counsel for the respondent(s) stated that its only case of alleged malafide
has been made out in ground (c) at page 35 of the paper book. The said ground is
set out herein below:- "Cancellation of reconveyance order is colourable exercise
of power. All materials have been considered including the views of the Corporations
in detail in G.O. Ms. No. 48 dated 10.3.1995. Corporation stated that there is a
proposal to construct fully air conditioned office cum shopping complex. However,
Government has rejected the proposal and ordered reconveyance. As per the impugned
order, Corporations has given a proposal for using it as parking space. It is submitted
that above proposal is dated 5.6.1998, long after Bankers pay order has been received
from the petitioner. It is submitted that facts set out above make it very clear
that impugned order is based on extraneous considerations and purely colourable
exercise of power."
19.
Unfortunately
we are of the opinion that the said ground does not make out any case of malafide
exercise of power by the Government. Specific pleadings with particulars must be
there to make out a case of malafide and the person against whom malafide is alleged
must be impleaded. No such pleadings are at all present in this case.
20.
Apart
from the aforesaid question, in L. Chandrasekaran (supra), this Court held that
if any re-conveyance is to be made that has to be done on the basis of the
present market value. The purported order of re-conveyance initially made by the
Government was not made on that basis either.
21.
In
the facts of this case there can be no question of promissory estoppel which is
an equitable doctrine. In the context of the clear provision of Section 48 of
the principal Act which was governing its field in 1995, when re-conveyance was
purportedly ordered, equity has no application. Nor is there any scope for principle
of natural justice to operate when the person complaining of its infraction cannot
show any right of his which has been violated. In the given facts of the case and
the clear mandate of Section 48 of the principal Act, we do not discern any right
of the landowners to apply for re-conveyance in respect of a land which had
vested in the Government long ago.
22.
Therefore,
examining the matter from all its angles, we do not find any reason to sustain the
impugned judgment passed by the High Court.
23.
The
appeals are, therefore, allowed. The judgment of the High Court is set aside.
24.
No
order as to costs.
.......................J.
(ASOK KUMAR GANGULY)
.......................J.
(SWATANTER KUMAR)
New
Delhi,
April
13, 2011
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