T.S. Sivagnanam, J.@mdashThe Appellant in all these appeals is the Tamil Nadu State Housing Board, which was arrayed as the Respondent in the writ petitions. Since, the challenge in these appeals is to a common order passed in all the writ petitions along with the batch of cases, they were heard together and disposed of by this common order.
2. We have elaborately heard the learned Additional Advocate General for the Appellant and Mr. P. Chandrasekaran, learned Counsel for the Respondent.
3. The matter relates to acquisition of a vast extent of land in Kalapatti Village, Coimbatore District, for the formation of Kalapatti Neighbourhood Scheme by the Appellant Board.
4. Some facts are necessary before we proceed to examine the controversy/issue in these appeals. The Government of Tamil Nadu issued a notification u/s 4(1) of the Land Acquisition Act on 13.03.1998, for the purpose of a Neighborhood Scheme and an extent of 1973.74 acres was sought to be acquired. Subsequently, the Government decided to drop the acquisition proceedings to an extent of 1186.38 acres. Thus, the notification covered an extent of 787.36 acres, and out of the said extent, 7.57 acres was excluded by the Government and in respect of an extent of 22.46 acres, the Government allowed the acquisition to lapse. Thereafter, the Government on their own volition dropped the acquisition to an extent of 30.21 acres. Ultimately, the award was passed only to an extent of 671.10 acres, and out of the balance extent of 86.5 acres, 79.29 acres were covered by the writ petitions pending before this Court and out of the said extent, the acquisition in respect of 50.57 acres was allowed to be lapsed and only 35.48 acres was covered in the batch of writ petitions, which were allowed by the learned Single Judge by the impugned Judgment.
5. It is noticed that out of an extent of 671.10 acres for which awards were passed, 496.54 acres were covered in 299 writ petitions, out of which 102 writ petitions covering an extent of 176.38 acres were disposed of in favour of the land owners and the said extent was re-conveyed, by exercising the powers u/s 48B of the Land Acquisition Act (hereinafter referred to as ''Act''), after recovering the amounts paid along with interest. The Respondent/writ Petitioners had filed one batch of the writ petitions, seeking to quash an order passed by the State Government dated 2.01.2008, by which, the Respondent/writ Petitioners'' request for reconveyance was rejected. In the other batch of cases, the writ Petitioners had challenged the notification issued u/s 4(1) and declaration issued u/s 6 of the Act and for other allied reliefs. The learned Single Judge, by an elaborate judgment, allowed all the writ petitions. Aggrieved by such judgment, the Appellant Board has filed these appeals.
6. The learned Additional Advocate General submitted that Section 48B of the Act is not attracted in this batch of cases, since the possession of the land has not been taken over by the Board. It is further contended that the writ Petitioners, being subsequent purchasers, have No. right to seek for re-conveyance. The learned Counsel further submitted that the learned Single Judge placed reliance on the Government order, re-conveying a portion of the land in favour of one Tmt. K. Palaniammal for allowing the writ petitions, but the said order is a wrong order passed by the Government, since Section 48B of the Act does not apply and the Government cannot be compelled to follow a wrong order. The learned Additional Advocate General further submitted that merely because another piece of land has been released from the purview of acquisition, it cannot be presumed that the Housing Board has abandoned the scheme. In this regard, the learned Counsel placed reliance on the decision of the Hon''ble Supreme Court in
7. Per contra, the learned Counsel for the Respondent/writ Petitioners would contend that the learned Single Judge has given elaborate reasons for allowing the batch of cases and rendered a positive finding, after analyzing the entire facts that there is patent discrimination in invoking Section 48B of the Act with regard to innocent purchasers. It is contended that the stand taken by the Appellant in these appeals, in contending that Section 48B of the Act was not attracted, it is being raised for the first time in these appeals and for the first time in appeal, a stand has been taken by the Appellant Board that the order of re-conveyance passed by the State Government in favour of Tmt. Palaniammal is a wrong order.
8. It is seen that these batch of writ petitions are not the first set of cases, which were decided by this Court, challenging the same acquisition proceedings. It appears that the first batch of writ petitions were filed during the year 1994, being W.P. No. 12201 of 1994 etc. challenging the Section 4(1) notification, and those writ petitions were disposed of by a common judgment dated 20.03.2001, by observing that it may not be proper for the State Government to spend huge public money for the acquisition proceedings, to acquire the lands of the Petitioners therein with superstructures and keep the land idle, if the scheme could not be successfully implemented. Therefore, this Court permitted the Petitioners therein to approach the Government seeking exemption or re-conveyance. Another batch of cases was filed during the year 1996, in W.P. Nos. 9747 to 9749 of 1996, challenging the notification issued u/s 4(1) and Section 6 of the Act, wherein the notifications were set aside, with the further observation that the Government will take in to account the ground realities before proceeding with the acquisition. The other writ petition challenging the same acquisition proceedings in
9. The learned Additional Advocate General tried to impress upon us that Section 48B of the Act was not attracted to the cases on hand and that the order of reconveyance passed in favour of Tmt. K. Palaniammal was a wrong order and therefore, the Government or the Appellant should not be compelled to follow the same.
10. We have gone through the counter affidavit filed by the Appellant Board in the writ petitions and the contentions raised by the Appellant Board before the learned Single Judge. To our surprise, we find that such pleas were never raised by the Appellant in the writ petitions and it appears to be a new plea, which was never the contention of the Appellant Board. In fact, in paragraph 21 of the common counter affidavit filed in the writ petition, it has been categorically admitted by the Appellant Board, that based on the recommendation of the High Level Committee, the Appellant Board passed a resolution on 16.10.2007 approving the recommendation of the High Level Committee, and the Government passed an order on 18.12.2007 re-conveying the land to Tmt. Palaniammal u/s 48B of the Act. Therefore, the Appellant Board cannot raise inconsistent pleas at the appellate stage and try to introduce a new case, which in any event, is devoid of any substance.
11. It was further contended that the Respondent/writ Petitioners were subsequent purchasers and therefore, not entitled to any relief. It is noticed that Tmt. K. Palaniammal in whose favour, an order of re-conveyance was passed, was also a subsequent purchaser, having purchased the land from the legal heirs of the original land owner, without being aware of the land acquisition proceedings. In the instant case also, the Respondents/writ Petitioners are subsequent purchasers from the original owner and it is stated that the writ Petitioners have obtained a building plan approval from the local planning authority, constructed a house on the plot and are residing there. Therefore, we see No. difference between the case of the Respondents/writ Petitioners and that of Tmt. K. Palaniammal, and if a differential treatment is accorded to the writ Petitioners, it would undoubtedly be discriminatory, thereby offending Article 14 of the Constitution of India.
12. Elaborate submissions were made by the learned Additional Advocate General stating that in terms of the law laid down by the Hon''ble Supreme Court in the case of Keeravaniammal and L. Chandrasekaran referred supra, the writ Petitioners cannot compel the Government or the Board to re-convey the lands. In the preceding paragraphs, we have mentioned about the various orders passed by the Division Benches and learned Singles Judges of this Court, quashing the acquisition notifications in respect of the same scheme and specifically observing that it is not in dispute that the entire scheme, namely Kalapatti Neighbourhood Scheme, has been dropped in view of several orders passed by this Court. Therefore, on the facts of the present case, it cannot be stated that the Respondent/writ Petitioners were not justified in calling upon the Government of the Board to treat them on par with Tmt. K. Palaniammal.
13. At this stage, it would be relevant to refer to the decision of the Hon''ble Supreme Court in
41. The Government has obligation of acting with substantial fairness and consistency in considering the representations of the landowners for withdrawal from acquisition whose lands have been acquired under the same acquisition proceedings. The State Government cannot pick and choose some landowners and release their land from acquisition and deny the same benefit to other landowners by creating artificial distinction. Passing different orders in exercise of its power u/s 48 of the Act in respect of persons similarly situated relating to the same acquisition proceedings and for the same public purpose is definitely violative of Article 14 of the Constitution and must be held to be discriminatory.
42. More so, it is not even the case of the Respondents that release of land from acquisition in favour of various landowners, as noticed above, was in violation of any statutory provision or actuated with ulterior motive or done due to some mistake or contrary to any public interest. As a matter of fact, vide order dated 19-8-2008, this Court gave an opportunity to the State Government to consider the representations of the Appellants for release of their land and pass appropriate order but the State Government considered their representations in light of the policy dated 26-10-2007 ignoring and overlooking the fact that for none of the landowners whose lands have been released from acquisition, the policy dated 26-10-2007 was applied. The State Government has sought to set up make-believe grounds to justify its action that development planning has been kept into consideration and that the Appellants have been offered developed plots of double the area of construction while the fact of the matter is that in some cases where the plots were vacant and had No. construction, the entire plot has been released from acquisition and also the cases where one room or two rooms construction was existing, the whole of plot has been released. While releasing land of more than 40 landowners having plots of size from 150 sq yd to 1500 sq yd, if development plan did not get materially disturbed in the opinion of the State Government, the same opinion must hold good for the Appellants'' lands as well.
43. It is unfair on the part of the State Government in not considering representations of the Appellants by applying the same standards which were applied to other landowners while withdrawing from acquisition of their land under the same acquisition proceedings. If this Court does not correct the wrong action of the State Government, it may leave citizens with the belief that what counts for the citizens is right contacts with right persons in the State Government and that judicial proceedings are not efficacious. The action of the State Government in treating the present Appellants differently although they are situated similar to the landowners whose lands have been released cannot be countenanced and has to be declared bad in law.
14. Following the decision of the Hon''ble Supreme Court in Hari Ram, supra, this Bench allowed the appeals filed by a land owner in L. Selvam v. Government of Tamil Nadu 2010 (5) C.T.C. 261 and the decision of this Bench in the case of L. Selvam, supra, was taken note of by another Division Bench of this Court in W.A.1926 of 2010 which was filed by the Tamil Nadu Housing Board and the Division Bench dismissed the appeal filed by the Board and directed re conveyance of the land, by judgment dated 19.11.2010. The SLP being SLP No. 4024 of 2011 filed against the said judgment has been dismissed by the Hon''ble Supreme Court, by order dated 14.03.2011.
15. The learned Single Judge also took note that "right to shelter" is part of the fundamental right guaranteed under Article 21 of the Constitution and relied on the decisions of the Hon''ble Supreme Court in
16. Ultimately, the learned Single Judge concluded with the following findings, which are quoted with approval:
77. If the issues are analysed in this angle, certainly the writ Petitioners have made out a case in their favour. Though an opportunity was given by the court for the Government to set right after noting the ground realities, they have not come forward to redress the grievance of the present Petitioners and they themselves gave relief to certain individuals. The basis of which was not explained to the satisfaction of this Court. Therefore, this Court will have to be proceeded on the basis of the following findings:
a)Unimaginable and unrealistic extent of lands were initially notified;
b)Substantial areas have been excluded either before Section 4(1) notification or after 4(1) notification and in some cases even after the Award was passed;
c)Resort to exercise power u/s 48B to reconvey the properties to certain individuals;
d)On the basis of recommendation made by the High Level Committee, some lands were excluded;
e)This Court had quashed many proceedings u/s 4(1) notification and Section 6 declaration and did not give any liberty to proceed afresh. They were not challenged either in higher forums or No. fresh notifications were issued to retain the so-called composite nature of scheme. f)When this Court recorded that proceedings have been dropped in Kalappatty village in two of the reported judgments, No. attempt was made either to seek for clarification or deny the statements recorded by this Court; g)When this Court instead of dealing with the validity of Section 4(1) and 6 in the cases which are filed on time gave liberty to the Petitioners to move the Government with the fond hop that the Government will redress the grievances of the land owners, the Government not only did not deal with the case but denied the relief, thereby drove the Petitioners to approach this Court. In this process, they have lost their valuable right to question and succeed in assailing the Section 4(1) notification and Section 6 declaration.
78. This Court in many cases relating to Kalapatty village found that there were approved layouts with the sanction of authorities and the Government Order itself had directed to refrain from acquiring the land which are covered by the approved layouts. Finally, after finding that there were lots of law and order problem in the area when this Court directed the State Government to take a pragmatic stand, that was also rejected. Considering the fact that in some cases, there were procedural lapse and in some cases, there were acquisition proceedings in respect of a college property which is in existence for over 10 years catering to the needs of about 3000 students, it will be unrealistic to destroy such edifice especially when the right to education is guaranteed as a fundamental right. Many of the Petitioners with their hard earned money have purchased plots and put up constructions to have a shelter of their own. The Housing Board in the name of providing houses cannot destroy the existing shelters put up by individual endeavOrs.
79. In the present case, it is not a mere negative equality the Petitioners are pleading. Because the State never attempted to justify the reconveyance and exclusions on the ground of either they were isolated instances or they were based on erroneous assumptions. On the contrary, the counter affidavits filed were vague and did not deal with the contentions raised by the Petitioners in these batch of writ petitions. Under these circumstances, this Court has No. hesitation to set aside the orders passed against the Petitioners.
80. Even though it is claimed that lands covered in the present writ petitions were only 35.48 acres, yet this Court having found that original scheme had become fractured and the present holding of the Housing Board is only on patches of land in the village, the Petitioners are entitled to retain their lands, but with one rider i.e. that on being notified by the Government and the Housing Board, the Petitioners shall return the compensation received by them together with interest at the rate of 6% per annum. In cases where they have not withdrawn the deposits, it is for the State to withdraw the amounts lying either in revenue deposit or in court deposit. The lands even after being fractured, if the Housing Board as per revised scheme wants to go ahead with building houses this exclusion will in No. way hamper it.
17. As discussed above, initially the Government issued notification u/s 4(1) of the Land Acquisition Act for acquiring 1973.74 acres of land. Subsequently, the Government decided to drop the acquisition proceedings to an extent of 1186.38 acres. The notification, therefore, covered 787.36 acres, and out of the said extent 7.57 acres were excluded by the Government, and to the extent of 22.46 acres the Government allowed the acquisition to lapse. Curiously enough the Government on their own volition again dropped the acquisition to an extent of 30.21 acres, and ultimately, the award was passed only to an extent of 671.10 acres of land. Thereafter, from time to time, the Government on their own or pursuant to the directions of this Court in several writ petitions excluded the lands from acquisition. It is not only that, the notification u/s 4 (1) of the Act in respect of certain extent of land was also quashed. The learned single Judge also found that one of the land owners viz., K. Palaniammal, who had purchased the land from the legal heirs of ex-land owner, moved the Government to re-consider the request of re-conveyance of land and the High Level Committee recommended her case on the plea that she was an innocent purchaser. The Government had accepted the recommendation and re-conveyed the land after ordering collection of compensation paid together with interest.
18. It is, therefore, evidently clear that in number of cases the Government on the basis of the recommendations of the Expert Committee accepted the requests of the land-owners and took a decision to re-convey their lands. But, at the same time, in respect of some of the representations the Government took the decision otherwise and rejected the request of re-conveyance of the land. Such action of the respondents prima facie appears to be arbitrary, capricious, discriminatory and violative of Article 14 of the Constitution of India.
19. It is well-settled that No. unlimited jurisdiction is vested with any judicial or quasi-judicial forum. An unfettered discretion is a sworn enemy of the constitutional guarantee against discrimination. An unlimited jurisdiction leads to unreasonableness. No. authority, be it administrative or judicial has any power to exercise the discretion vested in it unless the same is based on justifiable grounds supported by acceptable materials and reasons thereof.
20. A Constitution Bench of the Supreme Court while dealing with the "State Action", in the case of
56. Now, the question immediately arises as to what is the requirement of Article 14: what is the content and reach of the great equalizing principle enunciated in this Article? There can be No. doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No. attempt should be made to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in
21. In
22. The concept of equality before law means that among equals the law should be equal and should be equally administered, and that like should be treated alike. There must not be discrimination among equals unless there is reasonable classification. When something is to be done within the discretion of the authorities, it must be done according to the rule of reasons and justice, and it should not be according to the whims of the authorities.
23. In a recent decision of the Supreme Court in
86. We also find merit in the Appellants'' plea that the acquisition of their land is vitiated due to violation of the doctrine of equality enshrined in Article 14 of the Constitution. A reading of the survey report shows that the committee constituted by the State Government had recommended release of land measuring 18.9725 ha. Many parcels of land were released from acquisition because the landowners had already raised constructions and were using the same as dwelling units. A large chunk of land measuring 4.3840 ha. was not acquired apparently because the same belonged to an ex-Member of the Legislative Assembly. The Appellants had also raised constructions on their land and were using the same for residential and agricultural purposes. Why their land was not left out from acquisition has not been explained in the counter-affidavit filed by the Respondents. The High Court should have treated this as sufficient for recording a finding that the Respondents had adopted the policy of pick and choose in acquiring some parcels of land and this amounted to violation of Article 14 of the Constitution. Indeed it has not been pleaded by the Respondents that the Appellants cannot invoke the doctrine of equality because the other parcels of land were illegally left out from acquisition.
24. After giving our anxious consideration in the matter, we are of the definite opinion that the action of the State in giving different treatment to the land-owners is highly arbitrary, capricious, discriminatory and violative of Article 14 of the Constitution of India. The learned single Judge has, therefore, rightly allowed the writ petitions. The impugned judgement of the learned single Judge, therefore, needs No. interference by this Court.
25. For all the above reasons, we find No. merit in these appeals and they are dismissed accordingly. No. costs. Consequently, connected miscellaneous petitions are closed.
