The Commissioner, Corpn. Of Chennai vs R. Sivasankara Mehta & Anr

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

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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

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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.

4 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

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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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