THE COMMISSIONER, CORPN. OF CHENNAI Vs R. SIVASANKARA MEHTA
Bench: ASOK KUMAR GANGULY,SWATANTER KUMAR, , ,
Case number: C.A. No.-005740-005741 / 2005
Diary number: 4648 / 2005
Advocates: S. THANANJAYAN Vs
E. C. AGRAWALA
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.5740-5741 OF 2005
The Commissioner, Corporation of Chennai ..Appellant(s)
Versus
R. Sivasankara Mehta and Another ..Respondent(s)
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
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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 2
ex-owner category, on collection of the compensation
amount paid by the government for the acquisition of
lands measuring 5 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 3
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.
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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
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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 thereunder, 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
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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
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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 8
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. 9
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
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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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