w w w . L a w y e r S e r v i c e s . i n


Papichetty Ragaviah Chetty 's Charities, rep by its Trustees v/s The State of Tamil Nadu rep. by Secretary to Government, Transport Department & Others

    W.P.No.14313 of 1998
    Decided On, 17 August 1999
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE S. JAGADEESAN
    For the Petitioner : R. Krishnamoorthy, Senior Counsel for A. Jinasenan, Advocate. For the Respondents : V.M. Rajavelu, Special Government Pleader, C. Krishnan for D. Krishna Kumar, Additional Central Government, Advocate.


Judgment Text
(Prayer: Petition under Article 226 of the Constitution of India, praying that in the circumstances stated therein, and in the affidavit filed therewith the High Court will be pleased to issue a Writ of Certiorarified Mandamus calling for the Proceedings of the 2nd Respondent made in reference K2/2257/82/dated 26.6.98 and quash the proceedings of the 2nd Respondent dt. 26.6.1998 and quash consequently direct the Respondents, to accent the alternative site of 4-1/2 grounds offered by the petitioner Trust as agreed to Dy me Government in their letter dated 25.4.1994.)

The petitioner is a religious and Charitable Institution. One of the properties of the petitioner trust is at Door No. 171, Poonamallee - High Road of an extent of 16 grounds with three buildings. Out of the three buildings, one building had been let out to R.M.S. Division, the third respondent herein in the year 1965. The lease period is for 10 years. After the expiry of the lease term, the Department though agreed to execute further lease but did not do so. Since the lease was not extended, the petitioner filed O.S 1889/76 on the file of City Civil Court, for eviction against the third respondent. The suit was decreed on 17.7.78 granting six months time for the third respondent to vacate and handover possession. After the decree, the third respondent negotiated for further lease at the monthly rent of Rs. 4,090/-. While the matter was pending correspondence, the Postal Department moved the second respondent herein for requisitioning the property. In September 1980 notice under the Requisition and Acquisition of Immovable Properties Act, 1952 was issued and thereafter action was initiated to acquire the entire 161/2 grounds with the buildings thereon. Section 4(1) notification was issued on 5.10.83, followed by a declaration under Section 6 dated 27.9.86. The petitioner challenged the acquisition proceedings in WP No. 1497/87 which was dismissed. The petitioner preferred writ appeal No. W.A. 317/88. When the said writ appeal was listed for final hearing, there was some negotiation between the third respondent and the petitioner and consequently the writ appeal was disposed of with a direction, directing the petitioner to make a detailed representation to the first respondent containing the offer of the alternative site and directing the first respondent to consider the same. Further this court gave an opportunity to the petitioner to challenge the decision of the first respondent if the said decision should go against the petitioner and further the Division Bench vacated the findings of the learned Single Judge in the writ petition. As following up action, the petitioner submitted a representation to the first respondent on 9.10.91 offering an alternative sight of 41/2 grounds which was inspected by the concerned authorities in May, 1992. Ultimately the proposal was placed before the Chief Postmaster General, Hyderabad who in turn addressed the Government. The Government, by their letter dated 25.4.94 had accepted the request of the Chief Postmaster General and directed him to go ahead with the acquisition of the alternative site of 41/2 grounds offered by the petitioner. The Government also suggested to explore the possibility of acquiring the alternative site by private negotiation. Hence the petitioner quoted the prevailing market value may be paid for the lands. But, however, no action was taken for nearly four years and all of a sudden the Government issued the proceedings stating that the Government issued the requisitioning body was not agreeable to the value of the land suggested by the petitioner and the Government was constrained to drop the proposal with regard to the alternative site and directed acquisition of the entire 16.5 grounds. Thereafter the petitioner once again made an offer to give the alternative site at the market rate prevailing at the time of the original acquisition. Without considering the same, the acquisition of the entire 16.5 acres is commenced. Challenging the same, the present writ petition has been filed.

2. On behalf of the first and second respondents a counter affidavit has been filed by the Deputy Secretary to Government, Transport Department in which it is stated that the Superintendent. R.M.S. Tirupathy Division applied for the acquisition of 16 grounds 2, Oil sq.ft. The necessary notification under Section 4(1) of the said Act was approved by the Transport Department and the same was published in the Tamil Nadu Government Gazette dated 5.10.83. Thereafter the enquiry under Section 5-A was held on 27.8.84. The declaration as contemplated under Section 6 of the said Act was published on 27.9.1986. The petitioner filed the writ petition W.P. No. 1497/87 questioning the validity of the acquisition proceedings. Ultimately on 7.11.88 the writ petition was dismissed and the petitioner filed Writ Appeal W.A. 317/88. The Writ Appeal was disposed of on 2.9.91 -giving liberty to the petitioner to make a representation before the Government proposing alternative site within six months and the Government shall pass orders upon the representation. In the event of the Government decides against the petitioner, the acquisition proceedings can be prosecuted from the stage of the declaration under Section 6 of the said Act. The petitioner submitted a proposal of providing an alternative site of an extent of 4 grounds. The Government suggested to examine the possibility of acquiring the alternative site through private negotiations and that the price of the alternative land should be proportionately got fixed at the old rate prevailing at the time of acquisition and permanent approach to the alternative land should be ensured and the cost of which should be borne by the petitioner. When this suggestion was put forward to the petitioner by their reply dated 27.2.95 and 6.4.95 the, stated that the suggestion of the Government in regard to the price is not agreeable anu they demanded and quoted a price of Rs. 50 lakhs per ground. Thereafter a meeting was convened on 2.6.98 and the Government decided to negative the request of the land owner of the alternative site and to proceed with the acquisition of the entire land covered in the old proposal. As per the orders of this court in the Writ Appeal W.A. 317/88 the acquisition proceeding is directed to continue from the stage of declaration under Section 6. The petitioner cannot have any grievance; especially when the petitioner's representative was absent in the meeting to decide the cost of the land.

3. The third respondent filed separate counter affidavit, wherein the facts have been furnished as given in the counter affidavit filed on behalf of the first and second respondents. It is further stated that the third respondent had already deposited a sum of Rs. 26 lakhs with the second respondent on 31.3.1987. The third respondent has considered the representation of the petitioner, as directed by this Court and passed orders, rejecting the same. It is further stated that the Ministry of Law, when approached for legal opinion in the case, has advised that the department should not agree for any fresh land acquisition proposal at this stage and suggested to proceed with the existing land acquisition proceeding. Hence the department has taken a decision against the petitioner Trust offering alternative land and further decided to process the existing acquisition proposal.

4. Mr. R. Krishnamoorthy, the learned senior counsel on behalf of the petitioner contended that pursuant to the orders in the Writ Appeal W.A. 317/88 the proposal has been given and the authorities have also accepted the proposal on two conditions, one is that the land cost will be paid at the rate prevailed at the time of initiation of the acquisition proceeding, and the other is that the approach road should be provided by the petitioner Trust. When the petitioner expressed that the land cost is low, immediately the authorities have turned round the request of the petitioner and want to proceed with the acquisition of the entire 16 grounds. When after the disposal of the writ appeal, the authorities have decided to have the alternative site of 4 grounds, the acquisition of the total area of 161/2 grounds is nothing but mala fide or depriving the Trust which is a charitable one from the regular income. Even though at the earlier point of time the petitioner raised a dispute with regard to the price, subsequently they had agreed to receive the compensation for the alternative site of 4'/2 grounds at the market rate prevailing at the time of issue of 4(1) notification initially. Hence the authorities ought to have reconsidered the request of the petitioner when they have offered to accept the compensation as suggested by the Government. Without doing so, in a highhanded and arbitrary manner, the acquisition proceedings is being continued merely on the basis a right has been given to them to proceed with the acquisition from the stage of declaration under Section 6 of the said Act by this Court in the judgment in writ appeal W.A. No. 317/88.

5. On the contrary, the learned counsel for the respondent contended that the Government had considered the request of the petitioner for the alternative site and the same had been rejected. There is no can did alternative proposal from the petitioner and moreover the petitioner had insisted for the market price of the land on the date of proposal. The alternative site is in lieu of the site under acquisition and as such the Government has rightly insisted for the compensation to be paid at the rate prevailed on the date of commencement of the acquisition. Since the petitioner has refused to receive the same, the Government has thought fit to proceed with the acquisition of the land as per the judgment in Writ appeal No. 317/88. The filing of the writ petition challenging the acquisition proceedings is only an offer an after thought and to prolong the litigation.

6. I carefully considered the contentions of both the counsel. Since almost the rights of the parties had been crystallised in the writ appeal W.A. 317/88, I am of the view that it is better to proceed thereafter. The petitioner Trust filed the writ petition earlier challenging the acquisition proceedings and the same was dismissed.

Aggrieved by the same, the petitioner preferred a writ Appeal W.A. 317/88 which was disposed of by the Division Bench of this Court by order dated 2.9.91 in the following terms:

'According this writ appeal is ordered in the following terms:

(i) The petitioners shall make a detailed representation to the first respondent making the offer of the alternative site which according to the petitioners would serve the purpose of acquisition, putting forth all the factors justifying the adoption of the same within a period of six weeks from today.

If such a representation is made, the first respondent shall consider it after hearing the stand of respondents 3 and 4 and render a decision on this question and the decision by the first respondent shall be communicated to the petitioners, before prosecuting further the acquisition proceedings.

If the decision at the hands of the first respondent on the above question should go against the petitioners, it is for the petitioners to seek the due process of law as may be available to them in respect of the acquisition proceedings, which as a consequence may have to be prosecuted from the stage-of Section 6 declaration.

(4) The findings of the ‘Learned Single Judge rendered on the points of attack urged against the acquisition proceedings stand vacated.

(5) We make no order as to costs..'

From the above order it is clear that the findings of the learned Single Judge in the writ petition had been vacated. The petitioner Trust had been given liberty to make representation to the first respondent making the offer of an alternative site within a period of six weeks and if such representation is made the first respondent shall consider the same. If the decision ends adverse to the petitioner, it is open to the petitioner to seek due process of law, as may be available to them and as consequence the respondents may have to prosecute the proceedings from the stage of Section 6 declaration. Pursuant to the order in the writ appeal, the petitioner made a representation dated 9.10.91 suggesting alternative site whereby the petitioner had offered 41/2 grounds in Door No. 172, Poonamallee High Road. Subsequently by letter dated 27.10.93 the third respondent has informed the petitioner that the Under Secretary to Government of Tamil Nadu, Transport Department has already been addressed on 26.8.93 to go ahead with the acquisition of 41/2 grounds of land, the alternative site offered by the petitioner and the petitioner was requested to pursue the matter with the said Under Secretary. By letter dated 25.4.94 the Secretary to Government informed the petitioner that the state Government accepted the request of the Chief Postmaster General, Andhra Pradesh to go ahead with the acquisition of the alternative site of an extend of 41/2 grounds.

The said letter is as follows:-

'From Thiru A. Nagarajan, I.A.S., Secretary to Government.

To The President, Pappichetty Ragaviah Chetty's Charities, 85, Narayana Mudali Street. Madras-79.

Sir,

Sub: Land Acquisition - Madras District - Egmore Nungambakkam Taluk-Egmore Village R.S. No. 380/1 - Acquisition for Railway Mail Service, Tirupathi Division W.A. No. 317/88 against W.P. No. 1497/87 filed by Pappichetty Ragaviah Chetty's Charities-Judgment delivered in 2.9.91 - Representation submitted by Pappichetty Raghaviah Chetty's Charities - Regarding

Ref: Your letter No. 310/91-92 dated 9.10.91.

I am directed to refer to the letter cited and to state that the Government accepted the request of this Chief Post Master General, Andhra Pradesh Circle, Hyderabad to go ahead with the acquisition an alternative extent of 41/2 grounds in S. No. 380/1 of Egmore Village in Egmore Nungambakkam Taluk of Madras District for the construction of the office building for Railway Mail Service, Tirupathi Division at Madras

2. The receipt of this letter may be acknowledged.

Yours Faithfully Sd/xxx For Secretary to Government Subsequent to this, the requisitioning body has made the offer to have the alternative site provided the compensation is fixed at the rate prevailed at the time of acquisition. For this the petitioner sent a representation dated 21.8.98 stating that the land value is to be fixed at the market rate, since there is a gap of 15 years between the date of 4(1) notification and the proposal of the alternative site. Thereafter the second respondent herein, by his letter dated 26.6.98 has informed the petitioner that the requisition body is not accepting the rate offered by the petitioner and as such the proposal regarding the alternative site is dropped by the department and the Government has decided to proceed with the old proposal of acquisition.

7. From the above correspondence, it is clear that the requisitioning body had accepted the proposal of the alternative site offered by the petitioner by their letter dated? 27.10.93 addressed to the petitioner wherein the petitioner was requested to contact the Under Secretary to the Government of Tamil Nadu who had already been informed to go ahead with the acquisition of the alternative site as early as August 1993. The Secretary to Government, Transport Department by his communication dated 25.4.94 has confirmed the letter of the third respondent with regard to their acceptance of the alternative site. When the Government thought to go for private negotiation, the price stood in the way of the requisitioning body and thereafter the acceptance had been withdrawn and the authorities have decided to go ahead with the old proposal of acquisition. When once offer of the petitioner regarding the alternative site had been accepted, I am of the view that for fixing the quantum of compensation it is open to the Government to go for private negotiation or to invoke the provisions of the Land Acquisition Act. In this case, the private negotiation with regard to the fixation of the cost of the land failed. Hence the other alternative open to the respondents is to invoke the acquisition proceedings under the Land Acquisition Act.

8. The liberty given to the respondents in the judgment in Writ Appeal W.A. 317/88 to proceed with the original acquisition from the stage of the declaration under Section 6 is only if the offer made by the petitioner in respect of the alterna

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tive site is rejected. The specific understanding of the parties as well as the court is that the petitioner has to make the representation, offering the alternative site and the respondent have to consider the same and pass orders. In this case the respondents had considered the offer of the alternative site and accepted the same. As the offer of the alternative site had been accepted, it is not open to the respondents to go back from the acceptance and to continue the acquisition proceedings from the stage of declaration under Section 6 of the Act. When the requisitioning body had accepted the alternative site, it is not clear as to what for the opinion of legal department is sought for. It is stated in the counter affidavit of the requisitioning body that the legal department had advised not to accept the alternative site and to proceed with, the original that acquisition. This clearly establishes the authorities have acted upon extraneous considerations on the opinion of the legal department and given ago by for their earlier decision of accepting the alternative site. 9. Now that the learned senior counsel for the petitioner represents that the petitioners are willing to accept the price to (sic) offered by the respondents i.e., the prevailing rate on the date of the initiation of the original acquisition, I am of the view that the respondents have no other option except to pay the compensation at that rate and take possession of the alternative site of 41/ 2 grounds. 10. Accordingly the writ petition is allowed and the impugned order, rejecting the offer of the petitioner regarding the alternative site is quashed. The respondents are directed to pay the compensation for the alternative site of 4 1 /2 grounds at the prevailing market rate on the date of the original acquisition proceedings within two months from today.
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