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TN Housing Board v. T.R.Sheshachalam - WA.No.547 of 2005  RD-TN 408 (31 January 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HON'BLE MR. JUSTICE P. SATHASIVAM AND
THE HON'BLE MR. JUSTICE N. PAUL VASANTHAKUMAR WRIT APPEAL No.547 of 2005
WAMP.No.1019 of 2005
The Tamil Nadu State Housing Board
rep. By its Chairman
Nandanam, Chennai 600 035. .. Appellant vs.
1. T.R. Sheshachalam (died)
2. T.R. Boopalan
3. K.K. Gajapathi
4. K.K. Ganasekaran
5. Tmt. Mageswari
6. Tmt. R. Parameswari
7. Chitra Nageswaran
8. P. Krishnan
10. Seshadri Babu
11. B. Jayakumar
12. A. Lalitha
13. R. Usha
14. S. Sasikala
16. N. Rathinavelu
18. Rathy Devi
20.State of Tamil Nadu rep. By its
Secretary to Government
Housing and Urban Development Department
Fort St. George, Chennai 600 009.
21.The Special Tahsildar
Tamil Nadu Housing Board Scheme
Ashok Nagar, Chennai 600 083.
22. S. Bhuvaneswari
23. T.S. Parthiban
24. T.S. Krishnakumar
25. S. Kanchanadevi
26. T.S. Mohan
(R.22 to R.26 brought on record as LRs.
Of the deceased first respondent vide
order of Court dated 13.12.2006 made in
WAMP.No.1820 of 2006) .. Respondents Writ Appeal filed under Clause 15 of the Letters Patent against the order of His Lordship Mr. Justice K. Ravirajapandian made in W.P.No.9488 of 2004 dated 16.08.2004. For appellants : Mr. P.S. Raman
Additional Advocate General for Mr. K. Chelladurai
For respondents: Mr. S. Parthasarathy, Sr. Counsel for Mr. S. Srinivasan for R.1 to R.19 Mr. K. Elango
Spl. Govt., Pleader for R.20 and R.21 Mr. V.N. Mohanraj for R.22 to R.26 ..
(Judgment of the Court delivered by P. SATHASIVAM,J.) Aggrieved by the order of the learned single Judge dated 16.08.2004 made in W.P.No.9488 of 2004, the Tamil Nadu State Housing Board through its Chairman has filed the above appeal.
2. The brief facts: The respondents 1 to 19 herein have filed W.P.No.9488 of 2004, to issue a writ of Mandamus directing the second respondent therein, Tamil Nadu State Housing Board to issue No Objection Certificate in their favour in respect of entire extent of 81 cents in Survey No.188/4 of Thiruvanmiyur Village. The said writ petition was allowed on 16.08.2004. In order to appreciate the impugned order, it is useful to refer the further details furnished in the affidavit filed by the Chief Revenue Officer, Tamil Nadu Housing Board. According to him, at the instance of the Tamil Nadu Housing Board, an extent of 275 acres of lands bearing V.No.140 of Thiruvanmiyur Village and V.No.141 of Kottivakkam Village, Saidapet Taluk, formerly Chengalpattu District, presently Kancheepuram District were proposed for the formation of South Madras Neighbourhood Scheme and necessary Notification under Section 4(1) of the Land Acquisition Act, 1864 (Central Act) (in short, 'the Act') for an extent of 148.01 acres in S.No.178/2 etc. of Thiruvanmiyur Village was approved by the Government in G.O.Rt.No.36 Housing Department dated 17.02.1975 and published in the Tamil Nadu Government Gazette dated 26.03.1975. The notified extent was divided into 7 Blocks. The writ petitioners land measuring 0.81 acres comprised in S.No.188/4 was included in Block No.II of the notification. The draft declaration under Section 6 of the Act for an extent of 9.57 acres comprised in S.No.188/4, 188/5, etc. of Block No.II was also approved by the Government in order No.596 Housing dated 23.03.1978 and published in the Tamil Nadu Government Gazette on 27.03.1978. After observing all formalities, the Land Acquisition Officer passed an award for S.No.188/4 and 188/5 measuring a total extent of 1.13 acres in award No.9/83 dated 28.03.1983. As per the award and as per revenue accounts, the writ petitioners land in S.No.188/4 measuring an extent of 0.81 acres stands registered in the name of Panchanathan Chettiyar under Patta No.1077. In the award enquiry it is stated that the said land is an ancestral property and Venugopal Chettiyar, Goapalasamy Chettiyar, Kannappa Chettiyar, Jayaram Chettiyar and Panchanathan Chettiyar are the equal sharers. All the above five persons are no more. One T.R. Sheshachalam and 30 others have taken as interested persons for the land bearing S.No.188/4 of Thiruvanmiyur Village and the award amount of Rs.40,408.10 was deposited in Civil Court under Sections 30 & 31 (2) of the Land Acquisition Act, since there was dispute as to the ownership. Thereafter, the possession of the said land was handed over to the Tamil Nadu Housing Board on 20.09.1983 by the Land Acquisition Officer. After taking over possession, the Tamil Nadu Housing Board prepared a lay-out, including other lands and got approval from Chennai Metropolitan Development Authority vide P.P.No.16969/4 36 B1/93 dated 19.11.1993 for the construction of 512 numbers of HIG flats. Due to the above said litigation, construction of flats in the writ petitioners land has not been carried out as per the approved lay-out. The writ petitioners land is essentially required for the completion of the said Scheme in order to provide housing facilities for the welfare of general public.
3. Further, the particulars furnished by the Tamil Nadu Housing Board show that the petitioners have filed W.P.No.16207 of 1991, challenging the acquisition proceedings after lapse of 16 years to quash the same to the extent of 0.81 cents of land and by following the judgment reported in 1991 (2) MLJ 150 (L. Krishnan vs. State of Tamil Nadu), the said writ petition was allowed by the learned single Judge (Y. Venkatachalam,J.) on 04.12.1998. But the said relied on decision had been reversed by the Supreme Court in AIR 1996 SC 497 (State of Tamil Nadu vs. L. Krishnan), which fact had not been placed before the learned Judge.
4. Again, respondents 1 to 19 filed WMP.No.2639 of 1999 in W.P.No.16207 of 1991, to permit them to carry out the rectification of the extent of said area as 0.81 acres instead of 0.81 cents in the affidavit filed in support of the W.P.No.16207 of 1991 and consequently direct the office to carry out necessary correction in the order of this Court dated 04.12.1998 passed in WP.No.16207 of 1991. But, by order dated 23.02.1999, the same learned Judge dismissed the said miscellaneous petition.
5. Thereafter, respondents 1 to 19 filed another writ petition, viz., W.P.No.272 of 2000, praying for No Objection Certificate in respect of the land in S.No.188/4 measuring an extent of 81 cents of Thiruvanmiyur Village. The learned single Judge (K. Sampath,J.) of this Court by order dated 10.01.2000, permitted the petitioners to make a representation to the Tamil Nadu Housing Board and also directed the Housing Board to pass orders on such representation of the petitioners within a period of two months thereafter. After considering the representation of the writ petitioners, the Tamil Nadu Housing Board, by letter dated 23.03.2000, rejected the No Objection Certificate for the land in Survey No.188/4 measuring 0.81 acres of Thiruvanmiyur Village.
6. In the meanwhile, the Government filed Writ Appeal against the order dated 04.12.1998 made in W.P.No.16207 of 1991 with delay and the same was condoned on payment of costs. But, the cost has not been paid in time though the amount was sanctioned on 25.04.2001; accordingly, the delay was not condoned. The Tamil Nadu Housing Board also filed Writ Appeal against the order dated 04.12.1998 in W.P.No.16207 of 1991 with delay in representation in WAMP.No.161 of 2003 in WA.S.R.No.29505 of 2000 and the same was also dismissed on 10.04.2003.
7. Taking into account the order of this Court dated 23.02.1999, discrepancy of property found in the writ petition is 0.81 cents, which has been affirmed by the said order, the respondents 1 to 19 can only claim necessary orders in respect of the said extent of 0.81 cents and not for 81 cents as projected by respondents 1 to 19 in the writ petition. The said aspect was placed before the Board meeting and the Tamil Nadu Housing Board in their proceedings dated 28.08.2003, resolved to issue No Objection Certificate to an extent of 0.81 cents in S.No.188/4; and thus the order of this Court was duly complied with. In such circumstances, the present writ petition seeking direction to grant No Objection Certificate to the entire extent of 81 cents in S.No.188/4 of Thiruvanmiyur Village is not maintainable.
8. Heard Mr. P.S. Raman, learned Additional Advocate General for the appellant - Tamil Nadu Housing Board and Mr. S. Parthasarathy, learned senior counsel for respondents 1 to 19, Mr. K. Elango, Special Government Pleader for respondents 20 and 21 and Mr. V.N. Mohanraj, learned counsel for impleaded respondents 22 to 26.
9. Mr. P.S. Raman, learned Additional Advocate General by drawing our attention to the prayer in W.P.No.16207 of 1991 and the order thereon and also of the fact that the appeal filed by the Government came to be dismissed, the appellants have no other remedy except to reconvey 0.81 cents of the petitioners land. He further contended that the learned Judge failed to note that the writ petitioners filed a petition, viz., WMP.No.2639 of 1999 in W.P.No.16207 of 1991, to amend the order dated 04.12.1998 made in W.P.No.16207 of 1991, for correcting the extent of land 0.81 acres instead of 0.81 cents and the said amendment petition was dismissed on 23.02.1999, hence once again there cannot be any different order in respect of the same survey number. He also pointed out that the learned Judge failed to take note of the fact that the land in question is already approved lay out for the development of the housing scheme.
10. On the other hand, Mr. S. Parthasarathy, learned senior counsel appearing for the contesting respondents submitted that the order dated 23.02.1999 made in WMP.No.2639 of 1999 in W.P.No.16207 of 1991, cannot be put against the respondents / writ petitioners. He further contended that in view of the fact that the acquisition was made in respect of 0.81 acres and not 0.81 cents, the relief prayed in the writ petition and the ultimate order of the learned single Judge dated 04.12.1998 is only a mistake and on that ground the present order of the learned Judge dated 16.08.2004 made in W.P.No.9488 of 2004 cannot be interfered. Mr. V.N. Mohanraj, reiterated the very same contentions. We have carefully perused the materials and considered the rival contentions.
11. We are conscious of the fact that in this appeal we cannot go into the correctness of the order of the learned single Judge (Y.Venkatachalam,J.) dated 04.12.1998 made in W.P.No.16207 of 1991; however, as rightly pointed out by the learned Additional Advocate General, inasmuch as the learned Judge allowed the writ petition only on the basis of decision of this Court, viz., 1991 (2) MLJ 150 (cited supra), which was reversed by the Supreme Court in AIR 1996 SC 497 (cited supra) and also of the fact that the acquisition proceedings was initiated in the year 1975; which was challenged in 1991 and quashed in the year 1998, we are constrained to refer certain factual details and legal position before considering the correctness of the order dated 16.08.2004 made in W.P.No.9488 of 2004, which is impugned in this appeal.
12. As stated in the earlier paragraphs, vast extent of lands in Thiruvanmiyur Village were sought to be acquired for implementation of South Madras Neighbourhood Scheme by the Tamil Nadu Housing Board. In so far as the land which we are concerned, Section 4(1) notification was published in the gazette on 12.07.1975; after enquiry under Section 5-A; declaration under Section 6 was published in the gazette on 27.03.1978; finally award in Award No.9/1983 was passed on 28.03.1983 and according to the Tamil Nadu Housing Board, possession of the said land was taken over on 20.09.1983. However, the petitioners, viz., T.R. Sheshachalam and 14 others challenged the notification issued under Section 4(1) and Section 6 declaration in W.P.No.16207 of 1991 only in the year 1991, there is no explanation at all for the same. Even when the said writ petition came up for hearing in December, 1998, unfortunately, no objection was raised neither by the Government nor the Tamil Nadu Housing Board regarding delay or laches on the part of the writ petitioners. Though paragraph 2 of the order of the learned Judge shows that the official respondents filed a counter affidavit and prayed this Court to dismiss the writ petition for "want of merits", the learned Judge, in the next paragraph by referring the decision in L. Kirshnan vs. State of Tamil Nadu represented by Secretary Housing (1991) (2) M.L.J. 150 and after observing that the said decision is applicable to the stand taken by the writ petitioners, allowed the writ petition. Unfortunately, the Government Pleader, who appeared for the State also submitted that the said decision is applicable to the said case. Admittedly, the decision of this Court in 1991 (2) MLJ 150 (cited supra) has been reversed by the Supreme Court in AIR 1996 SC 497 (cited supra). The effect of the above cited decision of the Supreme Court is that the plea of vagueness is not available. In other words, even if the notification does not furnish all the details about a Scheme, the same cannot be interfered on the ground of vagueness. Had the decision of the Supreme Court referred to above was brought to the notice of the learned Judge and the same was considered, the writ petition could have been dismissed as devoid of merits.
13. With reference to the said aspect learned Additional Advocate General by relying on a decision of the Apex Court reported in 2004 (7) SCC 19 (State of Orissa vs. Nalinikanta Muduli) contended that the Supreme Court has deprecated the decision/conclusion based on a overruled decision. The following observation/conclusion of the Supreme Court is relevant.
"6. It is strange that a decision which has been overruled by this Court nearly a quarter of a century back was cited by the bar and the Court did not take note of this position and disposed of the matter placing reliance on the said overruled decision. It does not appear that the decision of this Court reversing the judgment of the High Court was brought to the notice of the learned single Judge who was dealing with the matter. It is a very unfortunate situation that learned counsel for the accused who is supposed to know the decision did not bring this aspect to the notice of the learned single Judge. Members of the Bar are officers of the Court. They have a bounden duty to assist the court and not mislead it. Citing judgment of a court which has been over ruled by a larger Bench of the same High Court or this court without disclosing the fact that it has been overruled is a matter of serious concern. It is one thing that the Court notices the judgment overruling the earlier decision and decides on the applicability of the later judgment to the facts under consideration on it. It also does not appear that learned counsel appearing for the respondent before the High Court did not refer to the judgment of this court. All this shows that the matter was dealt with very casually. From the judgment of the High Court it is noticed that the hearing was concluded on 13.03.2003 and the judgment was delivered on 25.04.2003. It was certainly the duty of the counsel for the respondent before the High Court to bring to the notice of the Court that the decision relied upon by the petitioner before the High Court has been overruled by this Court. Moreover, it was the duty of the learned counsel appearing for the petitioner before the High Court not to cite an overruled judgment. It is not that the decision is lost in antiquity. It has been referred to in a large number of cases since it was rendered. It has been referred to recently in many cases e.g. S.M. Datta vs. State of Gujarat (2001 97) SCC 659); M.C. Abraham vs. State of Maharashtra (2003 92) SCC 649); Union of India vs. Prakash P. Hinduja (2003 (6) SCC 195) and earlier in many oft-cited decisions in State of Haryana vs. Bhajan Lal (1992 SCC (cri.) 426), Janata Dal vs. H.S. Chowdhary (1992 94) SCC 305), Union of India vs. W.N. Chadha (1993 SCC (Cri.)1171) and State of Bihar vs. P.P. Sharma (1992 SCC (Cri.) 1920. We can only express our anguish at the falling standards of professional conduct. Impugned judgment of the High Court is set aside. We remit the matter back to the High Court so that it can deal with the petitions afresh and decide on merits taking into account the decision and all other relevant aspects of this Court. All the petitions before the High Court which were disposed of by the impugned judgment shall stand restored to their original position to be dealt with in accordance with law."
As said earlier, except showing our anguish, the way in which the writ petition was allowed without any reason, except by mentioning the overruled decision and ignorance of learned counsel on either side, we are not inclined to elaborate the same at this juncture.
14. Apart from the above mentioned infirmity on the part of the Court as well as learned counsel appearing on either side, though the Government as well as the Tamil Nadu Housing Board filed independent appeal against the above mentioned order of the learned single Judge, in the case of appeal filed by the Government, the Division Bench while condoning the delay, imposed costs and due to failure to comply with the same, the delay was not condoned; and in the case of Housing Board it was only delay in representing their appeal, even that was not condoned due to failure to furnish acceptable reasons. Again, by showing our displeasure, we are unable to do anything at this juncture. One thing is clear that an order which is based on overruled decision has become final due to lapse on the part of all concerned.
15. With the above background, let us consider the correctness of the order in W.P.No.9488 of 2004. As discussed earlier, only on the basis of decision of this Court,viz., notification issued under Section 4(1) is vague, the learned single Judge (Y. Venkatachalam,J.) allowed the writ petition. It is not in dispute by all concerned that the decision based on vagueness, viz., 1991 (2) MLJ 150 (cited supra) was reversed by the Supreme Court in AIR 1996 SC 497 (cited supra). It is equally not in dispute that the acquisition proceedings cannot be quashed merely on the ground that the notification does not convey/contain all the details. To put it clear, the notification cannot be quashed on the ground of vagueness. As mentioned above, the learned Judge has not adverted to any of the grounds of attack to the acquisition. Equally, though the learned Judge mentioned that the respondents have filed a counter affidavit disputing the claim of the writ petitioners, failed to advert any of those objections. As per the decision of the Supreme Court, viz., 2004 (7) SCC 19 (cited supra) the decision of the learned Judge based on the overruled judgment cannot have any force. Though the Government and the Housing Board were to be blamed for their attitude in not pursuing their appeal effectively, on that ground the decision of the learned Judge (Y. Venkatachalam,J.) cannot be certified as a valid one.
16. Even if we accept that the order in WP.No.16207 of 1991 dated 04.12.1998 is valid as on date, as rightly pointed out by the learned Additional Advocate General, it applies only to an extent of 0.81 cents and not 81 cents as claimed. Though in the records and in certain other proceedings a reference was made to an extent of 81 cents, it is not in dispute that in the writ petition the prayer was to quash the acquisition proceedings relate to Survey No.188/4 of an extent of 0.81 cents and not either 0.81 acres or 81 cents as argued by Mr. S. Parthasarathy, learned senior counsel appearing for the contesting respondents. Inasmuch as certain difficulties were pointed out in accepting the order of the learned Judge (Y.Venkatachalam,J.), the fact remains that, that was the relief prayed by all the 15 petitioners. Interestingly, though the very same persons filed WMP.No.2639 of 1991 in WP.No.16207 of 1991, praying to amend the order dated 04.12.1998 passed in the writ petition by correcting the extent as 81 cents instead of 0.81 cents, after contest the very same learned Judge (Y.Venkatachalam,J.) by order dated 23.02.1999, dismissed the said application. In fact the learned Judge after finding no merits, dismissed their petition for amendment. Admittedly, the writ petitioners have not preferred appeal against the said dismissal order. As rightly pointed out by the learned Additional Advocate General, the said order becomes final.
17. In the present order under challenge, though the learned Judge (K.Raviraja Pandian,J.) very much emphasised equity in favour of the writ petitioners, we are of the view that the principle of equity is applicable not only to the petitioners, but also to the respondents even if they are Government and Government bodies. For the sake of repetition, we intend to point out that the initial judgment of the learned Judge (Y.Venkatachalam,J.) cannot be accepted as a valid order and even if we accept that the petitioners are entitled relief only to the extent of 0.81 cents, considering the lacuna in the said order, we are of the view that by applying equity, the appeal filed by the Government and the Tamil Nadu Housing Board could have been disposed of on merits and in that event it will not be any difficulty in dismissing the writ petition filed by the petitioners on the ground of laches and even on merits. We are also unable to agree with the view of the learned Judge ignoring the order dated 23.02.1999 in WMP.No.2639 of 1999 in WP.No.16207 of 1991, dismissing the petition for amendment, particularly when the petitioners have not preferred appeal against that order. As said earlier, what applies to the Government and Government bodies is equally applicable to the writ petitioners and via versa.
For all these reasons, we are unable to share the view expressed by the learned Judge that the writ petitioners are legally entitled to the relief in respect of 0.81 acres or 81 cents. Consequently, the order of the learned single Judge dated 16.08.2004 made in WP.No.9488 of 2004 is set aside; and the writ appeal is allowed. No costs. Consequently, connected WAMP., is closed.
1.The Secretary to Government
State of Tamil Nadu
Housing and Urban Development Department
Fort St. George, Chennai 600 009.
2.The Special Tahsildar
Tamil Nadu Housing Board Scheme
Ashok Nagar, Chennai 600 083.
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