T.R.Boopalan & Ors vs T.Nadu State Hng.Board And Ors

Triplicane Taluk, Chennai District. The said 2

land which was the subject matter of a

Notification under Section 4(1) of the Land

Acquisition Act, 1894, hereinafter referred

to as "the L.A.Act", issued pursuant to

G.O.MS 36/Housing, published by the Tamil

Nadu Government in the Official Gazette on

19.2.1975. It is the case of the

appellants that on 28.3.1983 an Award was

made in respect of the said lands which was

registered in the name of the appellants.

3. In 1991, the appellants filed Writ Petition

No.16207 of 1991 challenging the acquisition

proceedings in respect of Survey No.188/4

measuring 0.81 acres. According to the

appellants, the said writ petition was

allowed and the Notification under Section 4

(1) of the L.A. Act in respect of Survey

No.188/4 of the aforesaid village was

quashed. It appears that thereafter it was

discovered by the appellants that through

inadvertence the measurement of the land had 3

been shown in the writ petition as 0.81

cents instead of 0.81 acres and an

application was thereupon made before the

High Court to correct the mistake and to

amend the relief in respect of 0.81 cents to

0.81 acres since there was no dispute

regarding the same and the correct figure

had been mentioned both by the Tamil Nadu

Housing Board and the State of Tamil Nadu.

The said application for amendment of the

relief was dismissed on 23.2.1999 by the

High Court on the ground of laches.

4. Subsequently, the appellant applied to the

Tamil Nadu State Housing Board for issuance

of a "No Objection Certificate" in respect

of the lands covered by Survey No.188/4 to

enable the appellants to raise construction

thereupon. It appears from the records that

an inquiry was conducted into the status of

the land and in a report received from the

District Revenue Officer, LA, Tamil Nadu 4

Housing Board Schemes, it was revealed that

the Government machinery was hesitant to

take any further action to question the

correctness of the judgment of the High

Court allowing the appellants' writ

petition. On the basis of the above, the

appellants appear to have made an

application to the Tamil Nadu State Housing

Board for grant of a "No Objection

Certificate" in respect of the lands

comprised in Survey No.188/4 for the purpose

of raising constructions thereupon. As the

same was rejected, the appellants filed a

fresh writ petition before the Madras High

Court, being Writ Petition No.272 of 2000,

on 10.1.2000, for a direction upon the

authority concerned to issue a "No Objection

Certificate" in respect of the aforesaid

land consequent upon the order passed in the

earlier Writ Petition. The High Court

directed the respondents to consider the 5

representation of the appellants and to pass

orders in accordance with law.

5. The Respondent No.1 preferred an appeal

against the order of the learned Single

Judge, which was dismissed on 10th April,

2003, on the ground of delay. As the matter

was not proceeded with further, the order of

the learned Single Judge became final

between the parties. The appeal filed by

the Respondent No.2 was also dismissed.

Thereafter, on 13th February, 2004, the Tamil

Nadu State Housing Board offered to give a

"No Objection Certificate" to the appellants

for 0.81 cents only.

6. The appellants were constrained to file a

fresh Writ Petition, being W.P. No. 9488 of

2004, on 5th April, 2004, for a direction

upon the Respondent No. 1 to issue a "No

Objection Certificate" to the appellants in

respect of the entire 0.81 acres comprising

Survey No. 188/4 of Thiruvanmiyur. The 6

writ petition was allowed on 16th August,

2004, to do substantial justice to the

appellant without being hindered by

technicalities.

7. The Tamil Nadu State Housing Board preferred

Writ Appeal No. 547 of 2005 against the

judgment and order of the learned Single

Judge which was allowed by the Division

Bench on 31st January, 2007, upon holding,

inter alia, that the appellants herein were

entitled to relief only to the extent of the

land indicated in the Single Judge's order

and that equity could not be applied to one

of the parties alone. The Division Bench

also held that it could not ignore the

dismissal of the appellants' application for

amending the said order which had also

attained finality as no appeal had been

preferred against the same.

8. On behalf of the appellants, it was

submitted by Mr. Sundaram, learned senior 7

counsel, that the Division Bench of the High

Court failed to consider the appellants'

case in its true perspective and allowed

itself to be swayed by the fact that the

decision of the learned Single Judge was

rendered on the basis of a judgment which

had been overruled. The Division Bench of

the High Court relied upon the principle

that if a judgment is rendered on the basis

of a decision, which had been overruled, any

decision taken on the basis of the overruled

judgment will be void. Mr. Sundaram

submitted that the said principle would have

no application to the facts of the present

case since the Division Bench had itself

concluded that the decision in the earlier

case had become final between the parties

since the appeal preferred therefrom had

been dismissed.

9. Mr. Sundaram urged that in the present case,

the only question which requires an answer 8

is whether having regard to the fact that

the Section 4(1) Notification in respect of

Survey No. 188/4 had been quashed in the

earlier proceedings, the "No Objection

Certificate" asked for by the appellants

could be confined only to 0.81 cents and not

the entire land comprised in Survey

No.188/4. It was submitted that it was the

understood case of all the parties that the

"No Objection Certificate" had been asked

for in respect of the entire land comprised

in Survey No. 188/4 and that the Writ

Petition was filed for a direction on the

Tamil Nadu State Housing Board for issuance

of such "No Objection Certificate" for the

entire land, though through inadvertence the

area in the Writ Petition was referred to as

0.81 cents in place of 0.81 acres. It was

submitted that the same would be evident

from the counter-affidavit filed on behalf

of the Housing Board.

9

10. Mr. Sundaram referred to a copy of Tamil

Nadu Government Gazette dated 26th March,

1975 containing details of the lands

acquired for the purpose of the Tamil Nadu

Housing Board, which includes Survey No.

188/4 showing the extent of the area

comprised in the said Survey as 0.81 acres.

11. In addition to his aforesaid submissions,

Mr. Sundaram also pointed out that in the

earlier writ petition filed by the

appellants, the learned Single Judge had

quashed the Notification under Section 4(1)

of the Land Acquisition Act, in its

application to Survey No. 188/4 in its

entirety. Once the entire land comprised in

Survey No. 188/4 stood released from the

acquisition proceedings, the appellants were

free to apply for a "No Objection

Certificate" to the Respondent No.1 for the

entire lands and the respondent No.1 was not

entitled to confine the grant of such "No 10

Objection Certificate" only to the area

mentioned in the Writ Petition.

12. It was submitted that the Division Bench of

the High Court erred in reversing the

Judgment of the Learned Single Judge which

had taken a realistic view of the matter in

order to do justice between the parties.

13. On behalf of the Tamil Nadu State Housing

Board, Mr. Krishna Murthy, learned senior

advocate, attempted to justify the view

taken by the Division Bench upon holding

that the prayer made in the Writ Petition by

the appellants herein had been granted and

they could therefore have no grievance on

such score. In fact, the Tamil Nadu State

Housing Board had offered and was always

willing to grant the "No Objection

Certificate" in respect of 0.81 cents of

land in respect of which the petitioner's

Writ Petition had been allowed. 11

14. Mr. Krishna Murthy reiterated the reasoning

of the High Court indicating that what is

sauce for the goose is sauce for the gander.

He urged that while after the appeal

preferred by the Respondents against the

order of the learned Single Judge quashing

the Section 4(1) Notification in respect of

Survey No. 188/4 was dismissed on the ground

of delay, no further steps were taken in the

matter, similarly, when the appellant's

application for correction of the area of

land mentioned in the Writ Petition was

rejected, no further steps were also taken

by the appellants against the said order.

In other words, as in the case of the

Respondents so also in the case of the

appellants, the order of the learned Single

Judge rejecting the application for

correction of the area of land in the Writ

Petition had also become final and the

appellant was, therefore, disentitled from 12

asking for the same relief in a round about

manner. Mr. Krishna Murthy conceded that

the land comprised in Survey No. 188/4

measured 0.81 acres, but according to him,

without proper evidence, it could not be

taken for granted that the appellants were

the only persons entitled to the entire land

comprised in Survey No. 188/4. It was urged

that in such a scenario, the Division Bench

had quite rightly set aside the order of the

learned Single Judge for the aforesaid

reasons.

15. Having heard learned counsel for the

respective parties, we are unable to agree

with the reasoning of the Division Bench of

the High court in allowing the Writ Petition

filed by the Respondent No.1 herein.

16. There is no dispute with regard to the fact

that the land comprised in Survey No. 188/4

measures 0.81 acres. There is also no

dispute that in deciding the Writ Petition 13

filed by the appellants challenging the

Notification under Section 4(1) of the Land

Acquisition Act, 1894, in respect of Survey

No. 188/4, comprising 0.81 acres, the said

notification was quashed.

17. It is in the said circumstances that the

appellants' prayer for grant of "No

Objection Certificate" was considered by the

learned Single Judge in the Writ Petition

filed by the appellants herein. When the

parties are agreed upon the basic fact that

the Notification in respect of the entire

Survey No.188/4 was quashed, there could be

no justification in taking a technical

objection that since the Writ Petition

mentioned the relief sought by the writ

petitioners/appellants to be in respect of

0.81 cents, the appellants must be held to

such prayer, even if apparently a mistake

had been committed. While a comparison had

been drawn between the failure of the 14

respondents to take further steps in respect

of the Order passed by the High Court

quashing the Section 4(1) Notification in

respect of Survey No. 188/4 and the failure

of the appellants to take further steps on

the dismissal of their application for

correction of the relief prayed for in the

Writ Petition by amending the area mentioned

in the Writ Petition for which relief has

been sought, in our view, such a comparison

is not well-founded. While in the first

matter, a decision of a Single Judge on

merits was being questioned in appeal, in

the second matter, there was no challenge to

the merits of the decision of the learned

Single Judge but an application had been

made merely for correction of an error in

the Writ Petition itself with regard to the

area for which relief was sought. 15

1. In our view, the two above-mentioned cases

stand on different footings and cannot be

compared. Furthermore, there is force in

Mr. Sundaram's other limb of submission that

when the Notification under Section 4(1) of

the L. A. Act, with regard to Survey No.

188/4 had been quashed in respect of the

entire lands comprising 0.81 acres, there

was no reason for the respondent No.1 to

limit the grant of "No Objection

Certificate" only to the area mentioned in

the Writ Petition. Since the entire lands

stood released from the acquisition

proceedings, we are of the view that the

appellants were entitled to apply for "No

Objection Certificate" in respect of same

but the Respondent No.1, for reasons best

known to it, chose to confine itself only to

the area of land mentioned in the Writ

Petition, which according to us was clearly

an unintended error.

16

1. In such circumstances, we are unable to

sustain the decision of the Division Bench,

which is set aside. We, therefore, restore

the decision of the learned Single Judge by

which the Writ Petition was allowed. 17

1. The present appeal is, accordingly allowed,

but there will be no order as to costs.

...................J (ALTAMAS KABIR)

...................J (MARKANDEY KATJU)

New Delhi Dated: August 7, 2008