MOHAMMED KARIMUDDIN (DIED) AND ORS. Vs. THE STATE OF MADRAS REPRESENTED BY THE SPECIAL DEPUTY COLLECTOR OF LAND ACQUISITION, STATE HOUSING BOARD SCHEMES AND ORS.

JUDGEMENT

(1.) In this Writ Petition the petitioners seek to quash the order of the 1st respondent in G.O. Ms. No. 226 (Housing), Labour Department, dated 3rd June, 1969 and the consequent notification of withdrawal from acquisition of certain lands of the petitioners under the provisions of the Land Acquisition Act, which notification was published in the Fort St. George Gazette, dated 11th June, 1969. The petitioners are the owners of an extent of 15.94 acres of land in Survey No. 1/1 - A in Ammbakkam, which is comprised in the Madras extended Area Taluk. The lands are situate on the Madras-Bangalore Trunk Road and near a developed colony known as Shenoynagar and is in the neighbourhood of the well-known colony of Anna Nagar. The 1st petitioner died during the pendency of the Writ Petition and his surviving legal representatives are said to be the 2nd and 3rd petitioners. The original registered owner of the property was late Khader Mohideen Sahib. On 10th August, 1960 a notification under Section 4 (1) of the Land Acquisition Act was published notifying the intention to acquire the above lands belonging to Khader Mohideen Sahib for development of the areas in the neighbourhood of Madras City in accordance with the Land Acquisition and Development Schemes of the Government of India. It is not in dispute that the development of the neighbourhood of the Madras City was undertaken by the Tamil Nadu State Housing Board under the powers vested in it by the Tamil Nadu State Housing Board Act. In pursuance of the general policy of framing and executing improvement schemes the acquisition of the above land was undertaken by the State. It is not also equally in dispute that under the improvement scheme which covered the land as above, a provision was made for acquisition of these lands for the avowed purpose of the scheme. If once a scheme is so approved, the same could only be cancelled by the Board as such under Section 56 of the Tamil Nadu State Housing Board Act, 1961. The Board is a statutory corporate body having a perpetual succession and a common seal, as delineated in Sections 3 and 4 of the above Act. Thus, the notification under Section 4 (1) of the Land Acquisition Act, dated 10th August, 1960 was issued in the above background under the normal provisions of the Land Acquisition Act. The notice under Section 5-A of the Land Acquisition Act, hereinafter referred to as the Act, was served on the petitioners on 25th August, 1960. The petitioners expressed their desire that their entire land in the survey number, which was of an extent of 19.76 acres may be acquired instead of the major block being split into two by reason of the acquisition. In effect, therefore, the petitioners, by their statement, dated 27th October, 1960, categorically stated that they had no objection for the acquisition of the land in question. The case of the petitioners is that at the time when the notification under Section 4 (1) of the Act was published in the Gazette; it was a vacant site as conceded by the Surveyors in the State Housing Board Department. It appears, however, that several persons, who apparently formed themselves into an Association called the N.S.K. Nagar Kudivazhvor Sangam, Arumbakkam, filed statements to the effect that they had built huts on the land in question and that they were organising a Co-operative Society to purchase the land with the help of the Government and they have no objection to the acquisition of the land provided they were given alternative accommodation in case they are compelled to shift from this area. An enquiry under Section 5-A of the Act was held and the petitioners state that the occupants as above, though unauthorised, were given a hearing. It is in that context the petitioners alleged that on 7th December, 1960, the Collector of Madras, as the Land Acquisition Officer, sent to the Secretary to Government, Industries, Labour and Co-operation Department, a draft declaration which has to follow the usual enquiry under Section 5-A of the Act to the effect that about 301 persons have put up huts in the land and that the hut-dwellers have no objection to the acquisition if the sites in the acquired area are allotted to them or an alternative mode of rehabilitation is thought of by the authorities in the course of execution of the development scheme. The Joint Director of Town Planning, it appears, endorsed that the land in question is absolutely needed for development of the neighbourhood of the Madras City and the scheme has to be proceeded with. On 17th April, 1961, the Board of Revenue, as is seen from the records, recommended the acquisition and this was done after fully apprising themselves of the objections of the hut-dwellers. It was in those circumstances that the draft declaration proposed by the Collector was accepted, and the Government, on 6th December, 1961, approved of the declaration and caused it to be published on that date. It has also been brought out before me that Government specifically informed the State Housing Board that they have accepted the resolutions of the Board and recommended that the present occupiers be given preference in allotment of future sites in the developed area and that the occupants be permitted to continue until alternative sites are provided and that squatters be evicted but bearing in mind that in deserving cases they should be rehabilitated. It should be, however, stated that it was only after the notice under Section 4 (1) of the Act was issued, an attempt was made by the statutory authorities to include the names of the occupants in the self-styled N.S.K. Nagar. As by then two years had lapsed, and as there was no award enquiry as it is popularly called, the petitioners through counsel, on 10th April, 1962, complained about the non-passing of the award and called upon the Land Acquisition Officer to take further proceedings and pass an award or drop the acquisition proposal forthwith. On receipt of this notice the appropriate authorities, without dropping the proceedings, intended to proceed with it. On 30th July, 1972, notices under Sections 9 (3) and 10 of the Act were served on the petitioners, in which, for the first time, the names of about 260 hut-dwellers were noticed as if they were interested in the land. The petitioners' case is that they had absolutely no interest in the land at any relevant point of time. The petitioners filed their statements seeking for reasonable compensation for their lands. The petitioners obviously were under the impression that after the award enquiry fixed as above on 27th August, 1962, the Land Acquisition Officer would pass the usual award fixing a reasonable compensation for their lands. But nearly two years thereafter, and four years after the date of the notification under Section 4 (1) of the Act, a fresh notice under Section 5-A of the Act was once again given. Obviously this step was taken by reason of a decision of this Court reported in Sivaprakasa Mudaliar v. State of Madras, 1964 AIR(Mad) 115, in which the petitioners were not parties. The acquisition by then was questioned by owners in the neighbourhood of the petitioners' lands and it was in those circumstances and having regard to certain observations made by this Court in the above case a fresh Section 5-A enquiry was directed by this Court in cases where no such enquiry was held. This was, however, misunderstood and a second opportunity to the petitioners by way of a second enquiry under Section 5-A was given. Again the petitioners expressed their no objection to the acquisition and pointed out that the other occupants either in the huts or in the houses which by then cropped up unauthorisedly were totally disinterested in the lands or in the acquisition. The Collector of Madras, again on 27th June, 1964, as the Land Acquisition Officer, while recommending the acquisition and mentioning the existence of 338 huts and 4 tiled houses, stated that the occupants were prepared to have the existing land divided and allotted to them on payment of costs and expressly observed that the objections of the occupants may be overruled as they would be given alternate accommodation by the State Housing Board when they are actually evicted pursuant to the framing and implementation of the improvement scheme. Even thereafter nothing happened. The petitioners once again notified the Land Acquisition Officer that they would be moving the Court for a writ of mandamus for the passing of an award if one such is not passed for all that had happened. Curiously enough, in August, 1965, a third enquiry under Section 5-A of the Act was held under directions from the Board of Revenue as it was represented that the records were not traceable. In those circumstances the Collector, on 1st October, 1965, sent a third draft declaration to the Government mentioning that by then about 345 occupants had come up in the area and once again recommended that their objections may be overruled and that they could be provided with alternative accommodation by the State Housing Board. At this stage, a second declaration under Section 6 was made by the Government and it should therefore be deemed that the Government was satisfied that the acquisition process should go on in spite of the occupants having unauthorisedly come up on the land. Pursuant to this notification under Section 6, on 6th April, 1966, once again the award enquiry was taken up and notices under Sections 9 (3) and 10 were given not only to the petitioners but also to the occupants as if they were interested persons. On 16th May, 1966, the enquiry was held.

(2.) It is at this stage that certain special features which loomed very large in the instant case, have to be considered in detail so as to appreciate the contentions of parties. Apparently, in the course of the award enquiry as above, the occupants styling themselves as members of the N.S.K. Nagar Kudivazhvor Sangam, Arumbakkam, made representations to the Land Acquisition Officer. It is seen from the letter of the Special Deputy Collector to the Chairman, State Housing Board, dated 17th May, 1966 that, he gained the impression during the enquiry that the Chairman, State Housing Board, represented to the N. S. K. Nagar Kudivazhvor Sangam that the land acquisition proposals had been dropped. He, therefore, enquired whether he could proceed to pass an award. On 28th May, 1966, the Chairman, State Housing Board, wrote directly to the Secretary to Government, Industries, Labour and Co-operation Department, after referring to the draft declaration proposals and the earlier approval given by the State Government to the same:

(3.) The contention of the petitioner is that after all that has happened for nearly nine years subsequent to the first notification under Section 4 (1) of the Land Acquisition Act, it cannot be said that possession of the lands was not taken by the Government. Reliance is strongly placed upon the manner in which the land acquisition process was set into motion and how trespassers were encouraged to occupy private land which was by then sequestered under the power of eminent domain of the State. Reference was made to the fact that the first notification under Section 4 (1) did not mention any occupant and that it was only in 1962 when notices under Sections 9(3) and 10 were issued in connection with an award enquiry that about 260 trespassers were noted as interested persons in occupation of the land. It was also submitted that having regard to the peculiar facts and circumstances of this case whereby the Town Planning authorities who were a wing of the State, the State Housing Board authorities and the authorities of the Madras Corporation, the latter two being statutory bodies under the immediate supervision and control of the State Government sought to encourage the occupancy of such trespassers by permitting them to put up pucca structures thereon and by spending public money for the improvements of the said colony called N. S. K. Nagar. It was contended that it was through the active support and co-operation of the Government and the statutory bodies under their control the trespassers have gained ground into the land though they conceded in unequivocal terms in the correspondence which I shall presently refer to, that they had absolutely no right, title or interest over the land. In fact, expenditure of public money was incurred as if it was a budgetable item of expenditure and the Said budget having been finally approved by the State Government which they reviewed, it creates inter alia a situation of promissory estoppel which would not permit the State to resurrect art exhausted power under Section 48 of the Land Acquisition Act. Pertinent reference was made to the fact that the Corporation put up public roads and streets and lighted them at public cost and this was all to the knowledge of and with the connivance of the State Government. The petitioner is said to have been deprived of every conceivable right over his property and it is not possible for the Government to invoke Section 48 (1) of the Land Acquisition Act and hence the impugned notification is without jurisdiction. Secondly, it was said that the effect of the action of the respondent in withdrawing the acquisition proceedings is that they are taking away private property and practically vesting the same without authority in the trespassers. Though at every conceivable point of time the Collector of Madras, the Chairman, State Housing Board and the Commissioner, Corporation of Madras, including the Directorate of Town Planning were all parties to conferences in which they would not countenance the objection of the trespassers and on the other hand were repeatedly recommending the acquisition of the property, the subject cannot be left to an on-the-spot decision by the executive to leave the area comprised by N. S. K. Nagar from acquisition purely on humanitarian grounds. Though the award was ready to be passed by the Land Acquisition Officer, he did not pass it and this itself is reflective of lack of bona fides on the part of the State and its officers. It is only when a writ of mandamus is issued and after repeated directions by the Court in various writ petitions that the impugned notification was issued and this itself reflects that the 1st respondent acted hand in glove with the hut-wellers in N. S. K. Nagar. In the judgment of this Court in W.P. No. 705 of 1968 the Court did not agree with the reasons given by the State in not completing the acquisition. There has been a deliberate postponement of the completion of a legal process resulting in an arbitrary and capricious order being passed in the shape of the impugned notification. Even though Section 48 (1) envisages a power in the State to withdraw from acquisition a land of which possession has not been taken, yet such a power is not available in the instant case having regard to the circumstances and acts already referred to and in the light of the telling events that happened between 1960 and 1969.