TaxTMI 
TaxTMI 
2014 (6) TMI 1022
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....rt, dated 19.12.2013, dismissing the Writ Petitions, challenging G.O.Ms. No. 380 Revenue [LD1(1)] Department, dated 28.09.2013, which culminated in the orders of the District Collector, Chennai, dated 30.09.2013, directing the appellants to vacate the land and hand over possession of the premises to the Tahsildar, Fort-Tondiarpet Taluk, Chennai. 2. Case of the appellants before the writ court was that they were the lessees/sub-lessees/tenants of the building constructed by a Trust, namely, Rajah Sir Ramasamy Mudaliar Choultry, situated opposite to the Central Railway Station, Chennai, and when they are in possession and enjoyment of the same, the Government of Tamil Nadu passed a Government Order in G.O.Ms. No. 380, Revenue, [LD1(1)] Department, dated 28.09.2013, pursuant to which the District Collector, Chennai, by his orders, dated 30.09.2013, directing them to vacate the land and hand over possession of the premises to the Tahsildar, Fort-Tondiarpet Taluk, Chennai, on the ground that the land was required for Chennai Metro Rail Project with larger public interest to Chennai Metro Rail Limited (in short CMRL), for implementing the project, which action, according to the appell....
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....facts are that originally the Government of Tamil Nadu issued an order in G.O.Ms. No. 168, Revenue, dated 21 May 2012, resuming the land in T.S. No. 41, alleging the violation of the terms of original Grant and also on account of a larger public purpose and to hand it over to Chennai Metro Rail Limited, in connection with the introduction of Metro Rail at Chennai. The said Government Order and the consequential order passed by Administrator General and Official Trustee (AGOT) were challenged in W.P. No. 19269 of 2012 and its batch. The Writ Petitions were allowed by a learned single Judge by his common order, dated 26.11.2012, with a direction to the Government to issue notice to the lessees, AGOT and Co-Trustee and thereafter to pass fresh orders, taking into consideration their objections. The common order, dated 26.11.2012, was taken on appeal in W.A. Nos. 70 to 88 of 2013 and 91 to 106 of 2013 before a Division Bench and the said Division Bench, by its judgment, dated 12.07.2013, allowed the appeals. The unsuccessful writ petitioners filed Special Leave Petitions before the Supreme Court, which granted leave and after recording the undertaking given by the learned Solicitor Gen....
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....ennai Metro Rail Limited to assess the reasonable compensation payable to the petitioners, with the assistance of the District Collector, Chennai, and the Chief Engineer, Public Works Department, and pay the same to the petitioners on or before 10th January, 2014. Aggrieved over the said dismissal, these appeals are filed by some of the writ petitioners. 8. Mr. A. Vijay Narayan, learned Senior Counsel appearing for the appellant in W.A. No. 2508/2013, would contend that resumption of subject lands on the ground of violation of conditions of the grant was wholly illegal. According to him, should there be a requirement of the lands for a public purpose, the initiation of proceedings under the Land Acquisition Act is a sine qua non and, therefore, the action of the respondents in resuming the lands by way of government orders is non est in law and a violation of the provisions of Article 300-A of the Constitution of India and Sections 10, 25 and 29 of the Official Trustees Act, 1913. 9. The learned Senior Counsel, in support of his submissions, has relied on the following decisions: (i) Bishan Das and others vs. State of Punjab and others, reported in AIR 1961 SC 1570: ....
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....voked, it was open to the State to take appropriate legal action for the purpose. Even if the State proceeded on the footing that the trust was a public trust it should have taken appropriate legal action for the removal of the trustee as was opined by the State's Legal Remembrancer. It is well recognised that a suit under s. 92, Civil Procedure Code, may be brought against persons in possession of the trust property even if they claim adversely to the trust, that is, claim to be owners of the property, or against persons who deny the validity of the trust. (14) Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law. The facts and the position in law thus clearly are (1) that the buildings constructed on this piece of Government land did not belong to Government, that the petitioners were in possession and occupation of the buildings and that by virtue of enactments binding on the Government, the petitioners could be dispossessed, if at all, only in pursuance of a decree of a Civil Court obtained in proceedings properly initiated. In th....
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....o be obtained by the Official Trustee before he disposes of any immovable property. 18. Section 29 also says that nothing in this Act shall be deemed to prevent the transfer by the Official Trustee of any property vested in him to any other person if the Court so directs. Since the transfer by auction sale in the present case is in favour of a person other than original transferee or any other lawfully appointed trustee it can only take place if the Court so directs. It is, therefore, evident that to effect a valid transfer of a trust property which has vested in the Official Trustee the latter has to seek direction from the Court for its transfer. If the Official Trustee feels that it is in the interest of the Trust to dispose of any immovable property of the Trust he can always seek direction from the Court. My attention has not been drawn to any paper by which Court's direction was sought for the transfer of the aforesaid immovable property. I am of the opinion that unless there is a direction by the Court or an order by the Court within the meaning of Sections 29 and 25 of the Official Trustees Act, 1913, no Trust property can be transferred by the Official Trustee....
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....lic. Any law, which deprives a person of his private property for private interest, will be unlawful and unfair and undermines the rule of law and can be subjected to judicial review. But the question as to whether the purpose is primarily public or private, has to be decided by the legislature, which of course should be made known. The concept of public purpose has been given fairly expansive meaning which has to be justified upon the purpose and object of statute and the policy of the legislation. Public purpose is, therefore, a condition precedent, for invoking Article 300A. Compensation 118. We have found that the requirement of public purpose is invariably the rule for depriving a person of his property, violation of which is amenable to judicial review. Let us now examine whether the requirement of payment of compensation is the rule after the deletion of Article 31(2). Payment of compensation amount is a constitutional requirement under Article 30(1A) and under the 2nd proviso to Article 31A(1), unlike Article 300A. After the 44th Amendment Act, 1978, the constitutional obligation to pay compensation to a person who is deprived of his property primarily dep....
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....t, unfair or unreasonable in terms of other provisions of the Constitution as indicated above. At this stage, we may clarify that there is a difference between no compensation shall be paid. However, there could be a law awarding nil compensation in cases where the State undertakes to discharge the liabilities charged on the property under acquisition and onus is on the government to establish validity of such law. In the latter case, the court in exercise of judicial review will test such a law keeping in mind the above parameters. 10. Mr. A.R.L. Sundaresan, learned Senior Counsel appearing for the appellants in W.A. Nos. 2511 and 2512 of 2013, would submit that there is no breach of conditions of the lease or grant by the appellants and, therefore, the impugned order is vitiated in law. He would further submit that the respondents have failed to take note of the provisions of Sections 10 and 25 and 29 of the Official Trustees Act and to follow the rule of law and, in the absence of any order from AGOT Court, the respondents ought not to have proceeded with the matter for resumption of the land. He finally contends that no personal hearing or opportunity is provided to the appe....
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....overnment Grants Act, 1895 then what procedure is to be followed. Section 3 of Government Grants Act, 1895, stipulates that the lease made by or on behalf of the Government to take effect according to their tenor - All provisions, restrictions, conditions and limitations contained in any such creation, conferment or grant referred to any Section 2, shall be valid and take effect according to their tenor; any decree or direction of a Court of Law or any rule of law, statute or enactments of the Legislature, to the contrary. 11. Mr. M. Abdul Nazeer, learned counsel appearing for the appellants in W.A. Nos. 2509 of 2013 and 275 and 276 of 2014, would submit that the appellants are in lawful possession of the property and the finding of the Supreme Court in this regard would fortify the stand that these appellants are in continuous possession in terms of the lease and there is no violation of the terms of lease by the appellants. It is his contention that the land alone belongs to the State and the superstructure thereon is built by the appellants by incurring huge expenditure, but, till-date, no compensation is paid and also no procedure has been followed by the respondents before ....
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....nion was a legacy from the Rulers' polity which could have no place in a democratic set-up. The matter was, therefore, further discussed by the Ministry of States with the Premiers of Unions and States on May 19, 1949, and it was decided, with their concurrence, that the Constitution of the States should also be framed by the Constituent Assembly of India and should form part of the Constitution of India. It is impossible to think of those who-sat down together-in the Constituent Assembly, and of those who sent representatives there, as conqueror and conquered, as those who ceded and as those who absorbed, as sovereigns or their plenipotentiaries, contracting alliances and entering into treaties as high contracting parties to an act of State. They were not there as sovereign and subject as citizen and alien, but as the sovereign peoples of India, free democratic equals, forging the pattern of a new life for the common weal. Every vestige of sovereignty was abandoned by the Dominion of India and by the States and surrendered to the peoples of the land who through their representatives in the Constituent Assembly hammered out for themselves a new Constitution in....
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....f the first part. In the next place, the matter is put beyond the pale of controversy, if the order were read, as it has to be read, in conjunction with the plaint and the application for a temporary injunction. Mr. Sinha did not seriously contend that if the order of the Court were understood in the light of the allegations and prayers in these two documents, the reference to the "notification" in it was only to one under s. 3(1) of the Act, and that the injunction therefore was meant to cover and covered such a notification. We, therefore, hold that this objection must fail. (iii) The Special Land Acquisition Officer, Hosanagar vs. K.S. Ramachandra Rao and others, reported in AIR 1972 SC 2224: 2. Mr. M. Veerappa, the learned counsel for the State of Mysore, contends that the Land Acquisition Officer had not assessed the compensation payable for the rights of the respondents in the lands acquired. According to him, the Land Acquisition Officer merely estimated the value of the lands acquired. He contends that the respondents are not entitled to the entire value of the lands acquired, but that they are entitled only to the value of their rights into those lands as....
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.... in the suit brought by the respondent, and the rights have to be worked out in terms of the decree passed by him which has since become final. Besides, the decision in Olga Tellis is of little avail. Chandrachud, CJ. speaking for the Constitution Bench observed that the word 'life' in Art. 21 included livelihood, but upheld the validity of ss. 313(1) and 314 of the Bombay Municipal Corporation Act, 1888 which provided that the Commissioner may 'without notice, cause to be removed' obstructions as an encroachment on footpaths could not be regarded as unreasonable, unfair or unjust. The learned Chief Justice however said that the section conferred a discretionary power which like all power must be exercised reasonably and in conformity with the provisions of our Constitution. In Bombay Hawkers' Union, Chandrachud, CJ. speaking for himself and one of us (Sen, J.) held that the impugned provision was in the nature of a reasonable restriction in the interests of the general public, on the exercise of the right of hawkers to carry on their trade or business.... (vi) State of U.P. and another vs. Synthetics and Chemicals Ltd. and another, reported in (1991) 4....
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....der an obligation to pay compensation as provided in the Act. Viewed in any way, the petitioners are entitled to succeed. (viii) Amit Das vs. State of Bihar, reported in AIR 2000 SC 2264(1): 13. Under Section 18, when any person accused of a bailable or non-bailable offence and apparently a juvenile is arrested or detained or appears or is brought before a Juvenile Court, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, or in any other law for the time being in force, be released on bail with or without surety unless there appears reasonable grounds for believing that the release is likely to bring him in association with any known criminal or expose him to moral danger or that his release would defeat the ends of justice. In the latter case, the person has to be kept in an observation home or a place of safety until he can be brought before a Juvenile Court. The Juvenile Court if not releasing the person on bail must not commit him to prison but send him to an observation home or a place of safety during the pendency of the enquiry before him. Under Section 20, where a juvenile charged with an offence appears or is produced....
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....aris Ltd. (k), (1936) 2 All ER 905 (CA), the only point argued was on the question of priority of the claimants debt, and, on this argument being heard, the court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd., (1941) 1 KB 675, the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided without argument, without reference to the crucial words of the rule, and without any citation of authority, it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. In State of U.P. & Anr. vs. Synthet....
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.... of Section 60 of the Transfer of Property Act and further having regard to the fact that a usufructuary mortgagee would be entitled to possess the property in question till a final decree of redemption is passed. 25. A bare perusal of the provisions of Order XXXIV Rule 7 & 8 would show that despite failure to pay the amount found or declared due by the preliminary decree on or before the date fixed by the Court, the mortgagee-defendant shall be entitled to apply for a final decree under clause c(ii) of rule 7 of Order XXXIV. In a case of a mortgage by conditional sale or anomalous mortgage, the mortgagee can pray for passing of a final decree debarring the mortgagor from claiming his right to redeem the properly. In a case of a usufructuary mortgage, however, the mortgagee is not entitled to apply for a final decree. The right of mortgagee to apply for a final decree is provided in sub-clause (3) of rule 8 of Order XXXIV. His application for a final decree must be confined to for declaration that the plaintiff and all persons claiming under him are debarred from all right to redeem the property in the case of a mortgage by a conditional sale or of an anomalous mortgage th....
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....igned land may amount to deprivation of right to livelihood. The denial of constitutional claim to receive just compensation after depriving the assignee of his land is impermissible except pursuant to a constitutionally valid rule or law. 104. Therefore, notwithstanding the fact that the recipients had accepted the assignment subject to 'no compensation clause' and that they will not object to the resumption of the assigned lands for a "public purpose, they are entitled to assert that any such action on the part of the authorities will be in violation of their guaranteed fundamental rights. How far the argument regarding the existence and scope of the right claimed by the recipients is well-founded is another matter. But, the argument has to be examined despite the concession. 105. In the matter of distribution of material resources of the community to the vulnerable sections of the society by the State in furtherance of its constitutional obligations no argument can be heard from the State contending that the recipient of the benefit may either accept with the restrictions or not to accept the benefit at all. The whole idea of distributive justice is to ....
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.... grant or patta to resume the land for such public purpose and resorts to acquisition of the land under the provisions of the Land Acquisition Act, 1894, the assignees shall be entitled to compensation as owners of the land and for all other consequential benefits under the provisions of the Land Acquisition Act, 1894. No condition incorporated in patta/deed of assignment shall operate as a clog putting any restriction on the right of the assignee to claim full compensation as owner of the land. 112. In such view of ours, the view taken by this Court in Bondapalli Sanyasi (supra) that whenever the land is taken possession of by the State invoking the terms of the grant, the right of an assignee to any compensation may have to be determined in accordance with the conditions in patta itself is unsustainable. With due respect, we are unable to agree with the view taken in this regard. We are also unable to agree with the view taken that the assignee shall be entitled to compensation in terms of the Land Acquisition Act not as owner but as an interested person for the interest he held in the property. (xii) Chairman, Indore Vikas Pradhikaran vs. M/s. Pure Industrial C....
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....en otherwise, unless the parties to the agreement had an intention to enter into a deed of lease the Administration would not have agreed to demise the premises on payment of rent in lieu of grant of exclusive possession of the demised land and further stipulated service of three months' notice calling upon either party to terminate the agreement. In view of the same, the argument advanced by the learned counsel of the appellant that a stipulation having been made in the agreement itself that by reasons thereof the grantee shall not be a tenant and thus the construed to be a license cannot be accepted. In our considered view, such a clause may at best be one of the factors for construction of the document in question but the same by itself certainly be a decisive factor. (xiv) Azim Ahmad Kazmi and others vs. State of Uttar Pradesh and another, reported in (2012) 7 SCC 278: 30. In State of U.P. vs. Zahoor Ahmad, this Court held that Section 3 of the Act declares the unfettered discretion of the Government to impose such conditions and limitations as it thinks fit, no matter what the general law of the land be. From Clause 3(C) of the deed, it is clear that the ....
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....L has committed to preserve the heritage building as per the meeting of Heritage Committee held on 17.02.2012. It is indeed regrettable to note that the Heritage Committee has only directed CMRL to ensure as to the non-hindrance of the view of Central Railway Station, which falls in the proximity of the proposed station area. The learned counsel would also argue that on an earlier occasion, CMRL filed an affidavit before the Hon'ble Supreme Court in O.S.A. Nos. 100 and 101 of 2011, stating its inability to plan setting up of underground metro station in lands, where Hotel Picnic was situated thereon. Therefore, it is crystal clear that there was no discussion regarding resumption of Rajah Sir Ramasamy Mudaliar Choultry located in T.S. No. 41. Moreover, the founder Trustee had invested a sum of Rs. 30,000/- in the year 1888 itself towards construction of choultry in the grant land, which is under the management and control of this Court as per the Official Trustee Act, 1913. According to Section 10(2) of the said Act, the Official Trustee has to take periodical directions and orders from this Court as required under Section 25 thereof. 13. Further, according to the learned co....
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.... the Constitution; and lastly there must be an independent judiciary to protect the citizen against excesses of executive and legislative power. Fortunately, whatever uncharitable and irresponsible critics might say when they find a decision of the court going against the view held by them, we can confidently assert that we have in our country all these three elements essential to the rule of law. It is plain and indisputable that under our Constitution law cannot be arbitrary or irrational and if it is, it would be clearly invalid, whether under Article 14 or Article 19 or Article 21, whichever be applicable. (ii) Amba Bai and Others vs. Gopal and other, reported in (2001) 5 SCC 570: 11. If the Judgment or order of an inferior Court is subjected to an appeal or revision by the superior court and in such proceedings the order or judgment is passed by the superior court determining the rights of parties, it would supersede the order or judgment passed by the inferior court. The juristic justification for such doctrine of merger is based on the common law principle that there cannot be, at one and the same time, more than one operative order governing the subject ma....
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....ourt in Roshan Lal Goswami that an auction-purchaser on provisional possession being given to him possesses possessory rights, though he does not have proprietary rights in the auctioned property. Thus, there remains no doubt that in October, 1960 or near about encumbrance in the subject property came to be created. 42. The next question is whether on creation of an encumbrance, the subject property could have been acquired under the LA Act although the ownership in the land vested in the central government. Ordinarily, when the government possesses an interest in land, which is the subject of acquisition under the LA Act, that interest is outside such acquisition because there can be no question of the government acquiring what is its own. This is what this Court said in Nusserwanji Rattanji Mistri13 but this rule is not without an exception. There is no impediment in acquisition of land owned by the central government by invoking the provisions of the LA Act where such land is encumbered or where in respect of the land owned by the government some private interest has been created. As a matter of fact, Sharda Devi11 does not hold to the contrary. It is so because what Sh....
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....mission. It is only a person who has an interest in the land who can challenge acquisition. When a challenge is made to an acquisition at a belated stage, then even if the court is inclined to allow such a belated challenge, it must first satisfy itself that the person challenging acquisition has title to the land. Very significantly, in their writ petition the respondents do not state when they acquired title. 17. Undoubtedly, the evacuee properties vested in the Custodian for the purposes of distribution as per the provisions of the various Acts. However, it is to be noted that under the various Acts in lieu of properties, compensation in terms of money can also be paid. Thus, merely because the properties vest in the Custodian as evacuee properties does not mean that the same cannot be acquired for some other public purpose.... 18. It would be open to the Government to acquire evacuee property and give to the Custodian compensation for such acquisition. Section 4 notification dated 23-1-1965 not having excluded evacuee properties the respondents can get no benefit from the fact that in the 1959 notification evacuee properties had been excluded. 45.1.(i....
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....ttee for creation of Core Zone and Buffer Zone appropriately create this balance. While mining activity is sure to create financial wealth for the leaseholders and also the State, the immense cultural and historic wealth, not to mention the wealth of information which the temple provides cannot be ignored and every effort has to be made to protect the temple. 99. Before concluding, we may deal with the submission of Shri Lalit that mining can be permitted beyond the distance of 300 meters from the temple by using Ripper Dozer and Rock Breaker machines. According to the learned senior counsel, the use of Ripper Dozer and Rock Breaker will not produce vibration which may cause harm to the temple. In our view, this submission does not merit acceptance because in paragraph 6 of the suggestions made by it, the Committee appointed by the Court has already indicated that mining in the Buffer Zone may be permitted with controlled blasting or without blasting by using Ripper Dozer/Rock Breaker or any other machinery and taking adequate measures towards generation, propagation, suppression and deposition of airborne dust to be closely monitored by experts from IBM etc. 100.....
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.... the lands required for the said project are situated on the northern side of Poonamallee High Road. Based on the source of information elicited under RTI Act, it is obvious that the appellants' lease-hold areas fall outside the lands earmarked for the purpose of Metro Rail Project. The appellants, as per the impugned orders, are to vacate their premises without claiming compensation for the amount spent on it, which is wholly arbitrary, illegal and violative of Articles 14 and 300(A) of the Constitution of India. He would submit that Section 25 of the Official Trustees Act clearly stipulates that any involvement of the Trust property should be dealt with only by the Hon'ble High Court and the Government has no business to interfere with the administration of the Trust. The learned counsel, by inter alia stating that the learned Single Judge, while allowing resumption of appellants' lands without even determining the compensation amount has taken away the rights of appellants, would submit that pronouncements of law, which are not part of the ratio decidendi and are not authoritative and the same was delivered without reference to the relevant provisions of the Act and ....
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....ect: The Master appears to have taken the view that, in so far as the debt was owing to the company and the account was in the name of the liquidator, there was a difficulty in proceeding by garnishee order. In my view the learned Master, if that was his view, was mistaken. If all other requirements were satisfied and the lady was entitled to garnishee that account of the company, the mere fact that it stood in the name of the liquidator does not seem to me to effect any difference in her rights. With all respect to the learned Lord Judge who delivered that judgment, and to Romer L.J., who agreed with it, I cannot consider that this Court is bound to follow it. It was delivered without argument, without reference to the crucial words of the rule, and without any citation of authority. Accordingly, I do not propose to follow these observations, because it seems to me that they are wrong in principle and are not to be justified when the language of the rule and the ordinary principles which govern the relationship of banker and customer are considered. It is worth noticing that in the later case of Hirschorn v. Evans Slesser L.J. Delivered a judgment, as one of a majority co....
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.... matter in dispute. The writ petition under Article 226 was dismissed on the ground of the disputed question of fact which was upheld in appeal by the Division Bench. A writ petition under Article 32 was filed. The right to possession of land was a fundamental right at that time. It was contended that the Government terminated the lease, as thereafter they were trespassers and so they had no right to resist the Government's power to resume the land. This Court had repelled both the contentions as unsound and has held that the Government violated the fundamental right to possession of lead since the petitioners therein were not trespassers. They remained in possession for long time. Pursuant to the lease, they had constructed dharamasala, temple and shops and managed them during the life time of the licencee. After his death, the petitioner and members of the family continued in possession of and in management of the properties which was an admitted possession. Therefore, they were not mere trespassers in respect of the said properties. It was held that on the admitted facts of the case, the petitioners therein could not said to be said in the trespassers in respect of the dhara....
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.... of the land except in accordance with the procedure prescribed under the Act. In that case, the recourse to the provisions under Section 9 of the Specific Relief Act (Section 6 of the present Specific Relief Act, 1963) was upheld. The question was also considered by this Court by one of us (K. Ramaswamy, J.) in East India Hotels Ltd. vs. Syndicate Bank [1992 Supp. (2) 29 at 44]. It was held in paragraph 29, 30 and 32 that: They must obtain such possession as they are entitled to by proper course. In our jurisprudence governed by rule of law even an unauthorised occupant can be ejected only in the manner provided by law. The remedy under Section 6 is summary and its object is to prevent self help and to discourage people in adopt any means fair or foul to dispossess a person unless dispossession was in due course of law or with consent. What is meant by due course of law? Due course of law in each particular case means such an exercise of the powers by duly constituted tribunal or court in accordance with the procedure established by law under such safeguards of the protection of individual rights. A course of legal proceedings according to the rules and principle....
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....nd limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor any rule of law, statute or enactment of the Legislature to the contrary notwithstanding. 21. The contention is that as the grant is of a freehold estate without any reservation it must, to take effect according to its tenor, be construed as granting exemption from assessment to revenue. But that will be extending the bounds of Section 3 beyond its contents. The object of the Act as declared in the preamble is to remove certain doubts "as to the extent and operation of the Transfer of Property Act, 1882, and, as to the power of the Crown to impose limitations and restrictions upon grants and other transfers of land made by it or under its authority". Section 2 enacts that the provisions of the Transfer of Property Act do not apply to Crown grants. Then follows Section 3 with a positive declaration that "all provisions, restrictions, conditions and limitations over" shall take effect according to their tenor. Reading the enactment as a whole, the scope of Section 3 is that it saves "provisions, restrictions, conditions and limitations ove....
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....tually appeared in that suit, they would be bound by the decree which had framed a scheme for the proper administration of the Trust. In support of this argument, reliance is placed on the decision of this Court in Raja Anandrao v. Shamrao, where it is observed that though the Pujaris were not parties to the suit under s. 92, the decision in that suit binds the pujaris as worshippers so far as the administration of the temple is concerned, because a suit under s. 92 is a representative suit and binds not only the parties thereto, but all those who are interested in the Trust. Mr. Setalvad has also relied on the two decisions of the Madras High Court, (1) in Ramados v. Hanumantha Rao and (2) in Khaja Hassaanullah Khan v. Royal Mosque Trust Board. The effect of those two decisions is that a decree passed in a suit filed under s. 92 framing a scheme is binding on all and it prevents every person whether a party to the suit or not from asserting in a subsequent suit rights which conflict with or attack the scheme. 16. In assessing the validity of this argument, it is necessary to consider the basis of the decisions that a decree passed in a suit under s. 92 binds all parties. ....
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....quire which interests were represented by the plaintiffs or the defendants. If the decree was passed in a suit under s. 92, it will become necessary to examine the plaint in order to decide in what character the plaintiffs had sued and what interests they had claimed. If a suit is brought under O. 1 r. 8, the same process will have to be adopted and if a suit is defended under O. 1 r. 8, the plea taken by the defendants will have to be examined with a view to decide which interests the defendants purported to defend in common with others. The decision of this question would be material in determining the correctness of the argument urged by Mr. Setalvad before us. 22. That takes us to the next question as to whether it would be appropriate to change the scheme in the present litigation even though the present suit may not be technically barred by res judicata. Mr. Setalvad contends that it is a well-recognised principle of law that a scheme in regard to a public trust once framed should not be altered light-heartedly unless there are substantial reasons to do so and he has strenuously relied on the finding of the High Court that the Trustees appointed under the scheme ever....
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.... of price support without any restriction on movement from one State to another. However, some of the States were implementing local laws with regard to ensuring that the private trade adhered to the stock limit restrictions on them and did not try to corner stocks for speculation purposes. The original target fixed for procurement was 9.5 million tonnes but at the end of June, only 6.5 million tonnes had been purchased, leaving a deficit of 3 million tonnes. The result was that the Government of India was thus forced to buy 1.5 million tonnes of wheat in the world market. The Government's procurement drive was mainly frustrated by wholesale dealers of foodgrains cornering the stocks of wheat by paying a price higher than the procurement price to the farmers. 47. The imperatives of the situation demanded that the speculative tendencies of the trade were curbed by strictly enforcing the stock limits of traders. Under original cl. 4 of the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978, a wholesale dealer, commission agent or a retailer could have in stock wheat not more than 750 quintals, 750 quintals and 100 quintals respectively, at any tim....
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....tification dated March 23, 1981, issued by the State Government of Rajasthan in exercise of the powers conferred by cl. 18 of the Rajasthan Trade Articles (Licensing and Control) Order, 1980, fixing the maximum limit of wheat to be possessed by a dealer at any one time at 200 quintals, on the ground that it is a reasonable restriction by the State Government within the meaning of Art. 19(6) of the Constitution. In view of these decisions, it is difficult to conceive as to how the contention based on Art. 19(1)(g) of the Constitution can survive. 49. True it is, if the governmental action is arbitrary or there is no rational nexus to the object sought to be achieved it is liable to be struck down as violative of Art. 14 of the Constitution. The State Government has adopted various measures in the interest of the general public for the control of production, supply and distribution of, and trade and commerce in, essential commodities. To obviate hoarding and black marketing in foodstuffs, it has promulgated the Order. It introduces a system of checks and balances to achieve the object of the legislation, i.e., to ensure equitable distribution and availability of essential co....
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....therefore, free to carry on their business within the permissible limits, i.e., they may carry on their trade or business or enter into inter-State or intra-State transactions of wheat subject to the stock limit of 250 quintals at a time. (vii) Municipal Corporation of Delhi vs. Gurnam Kaur, reported in AIR 1989 1 SCC 101: 11. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavement or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of....
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.... wherein this Court observed as under: A suit under s. 92, it is urged, is a representative suit, and so, whether or not the present respondents actually appeared in that suit, they would be bound by the decree, which had framed a scheme for the proper administration of the Trust. In support of this argument, reliance is placed on the decision of this Court in Raja Anandrao v. Shamrao, where it is observed that though the Pujaris were not parties to the suit under s. 92, the decision in that suit binds the pujaris as worshipers so far as the administration of the temple is concerned, because a suit under s. 92 is a representative suit and binds not only the parties thereto, but all those who are interested in the Trust....... .....In assessing the validity of this argument, it is necessary to consider the basis of the decisions that a decree passed in a suit under s. 92 binds all parties. The basis of this view is that a suit under s. 92 is a representative suit and is brought with the necessary sanction required by it on behalf of all the beneficiaries interested in the Trust. The said section authorises two or more persons having an interest in the Trust to file....
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....re persons amongst themselves for the purpose of filing a suit under Section 92 of the Code and the suit-title in that event would show only their names as plaintiffs. Can we say that the persons whose names are on the suit-title are the only parties to the suit? The answer would be in the negative. The named plaintiffs being the representatives of the public at large which is interested in the trust all such interested persons would be considered in the eyes of law to be parties to the suit. A suit under Section 92 of the Code is thus a representative suit and as such binds only the parties named in the suit-title but all those who are interested in the trust. It is for that reason that explanation VI to Section II of the Code constructively bar by res judicata the entire body of interested persons from reagitating the matters directly and substantially in issue in an earlier suit under Section 92 of the Code. (ix) Krishna Kumar and others vs. Union of India and others, reported in 1990 4 SCC 207: 59. The next question debated is that of financial implications. It is submitted that given the fact that the budget for the year 1990-91 for disbursement of pension is....
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....r of expenditure includable in the Annual Financial Statement, this Court has to be loath to pass any order to give any direction, because of the division of functions between the three co-equal organs of the Government under the Constitution. 63. Lastly, the question of feasibility of converting all living P.F. retirees to Pension retirees was debated from the point of view of records and adjustments. Because of the view we have taken in the matter, we do not consider it necessary to express any opinion. 64. Mr. C.V. Francis in W.P. No. 1165 of 1989 argued the case more or less adopting the arguments of Mr. Shanti Bhushan. Mrs. Swaran Mahajan, in W.P. No. 1575 of 1986, submitted that the rule as to commuted portion of the pension reviving after 15 years should be applied to P.F. retirees so that the corpus of Provident Fund dues received more than 15 years ago should be treated as committed portion of pension and be allowed to revive for adjustments against pension. In the view we have taken in this case it is not necessary to express any opinion on this question. (x) State of U.P. and another vs. Synthetics and Chemicals Ltd. and another, reported in 19....
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....of acquisition. The contents of the award extracted hereinbefore clearly indicate that the Land Acquisition Collector could not determine compensation payable towards the leasehold interest held by the appellant. Being an owner the Government is not enjoined to acquire its own interest in the land or land alone for public purpose. When its land is granted on lease in favour of a lessee its power to resume the land is subject to non-fulfilment of the terms and conditions of the lease by the lessee. So long as the lessee acts and complies with the covenants contained in the lease or the grant, the right to resumption in terms of the lease or grant would not arise. But when the land is required for public purpose, the Government should get absolute title thereof free from all encumbrances. Compensation becomes payable for the leasehold right or interest held by the lessee or grantee when the land is acquired. The point becomes clear from the following illustrations. Take a case where the Government granted lease of agricultural land on the annual payment of rent with a covenant that the Government is entitled to resume the land when needed for public purpose or as when the Go....
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....e acquired land. (xi) Arnit Das vs. State of Bihar, reported in 2000 5 SCC 488: 22. All this exercise would have been avoided if only the Legislature would have taken care not to leave an ambiguity in the definition of juvenile and would have clearly specified the point of time by reference to which the age was to be determined to find a person a juvenile. The ambiguity can be resolved by taking into consideration the Preamble and the Statement of Objects and Reasons. The Preamble suggests what the Act was intended to deal with. If the language used by Parliament is ambiguous the Court is permitted to look into the preamble for construing the provisions of an Act (M/s. Burrakur Coal Co. Ltd. & M/s. East Indian Coal Co. Ltd. Vs. The Union of India and others, AIR 1961 SC 954). A preamble of a statute has been said to be a good means of finding out its meaning and, as it were, the key of understanding of it, said this Court in A. Thangal Kunju Musaliar Vs. M. Venkatachalam Potti AIR 1958 SC 246. The Preamble is a key to un-lock the legislative intent. If the words employed in an enactment may spell a doubt as to their meaning it would be useful to so interpret the e....
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....rted in 2002 8 SCC 361: 16. In the present case, the order dated 10.9.1986 passed by this Court can be said to be declaration of law limited only to two points-(i) that in a petition putting in issue the constitutional validity of any State Legislation the State is a necessary party and in its absence the issue cannot be gone into, and (ii) that a belated prayer for impleading a necessary party may be declined by this Court exercising its jurisdiction under Article 136 of the Constitution if the granting of the prayer is considered by the Court neither necessary nor proper to allow at the given distance of time. By no stretch of imagination can it be said that the reasoning or view of the law contained in the decision of the Division of the High Court in M. Varadaraja Pillai's case had stood merged in the order of this court dated 10.9.1986 in such sense as to amount to declaration of law under Article 141 by this Court or that the order of this Court had affirmed the statement of law contained in the decision of High Court. 17. We are clearly of the opinion that in spite of the dismissal of the appeals on 10.9.1986 by this Court on the ground of non-joinder o....
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....e merits of the controversy for the first time in exercise of the jurisdiction of this Court under Article 136 of the Constitution. We must have the benefit of the opinion of the Full Bench of the High Court as to the vires of the State legislation involved. 21. For the foregoing reason, the appeals are allowed. The impugned judgment of the High Court is set aside. All the appeals shall stand restored before the Full Bench of the High Court and shall be heard and decided in accordance with law. The Full Bench while doing so, shall not feel inhibited by the fact that the appeals against the decision in M. Varadaraja Pillai's case were dismissed by this Court which, as we have already stated, were dismissed only on the technical ground without any law being laid down by this Court. We also clarify that in view of the time that has already been lost, the Full Bench may proceed to hear and decide all the controversies arising for decision in the writ petitions in the High Court, that is, the Full Bench may obviate the need of sending the matter bade to the Division Bench for hearing on such other issues as are not decided by it Instead it may decide all the issues raised i....
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....n 2005(4) SCC 649, P. Ramachandra Rao v. State of Karnataka reported in 2002(4) SCC 578, Nand Kishore v. State of Punjab reported in 1995(6) SCC 614, Isabella Johnson v. M.A. Susai reported in 1991(1) SCC 494. We do not think that the law laid down in these cases would apply to the present situation. In all these cases, it has been basically held that a Supreme Court decision does not become a precedent unless a question is directly raised and considered therein, so also it does not become a law declared unless the question is actually decided upon. We need not take stock of all these cases and we indeed have no quarrel with the propositions settled therein. However, we may point out that, firstly, the question of validity is settled in MDA's case (cited supra). This is apart from the fact that we are of the opinion that there is nothing wrong with the Amending Act insofar as its Constitutional validity is concerned. We have already rejected the argument that there was any discrimination between Ujariyaon Part II and Ujariyaon Part III schemes. We are convinced with the explanation given by the State Government as to why Ujariyaon Part III scheme was left out of the considerati....
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....oried buildings and the Civil Engineers appointed by the Plaintiffs have arrived at the value of the buildings at Rs. 5.73 crores and Rs. 3.96 crores and Rs. 6.08 crores respectively and if interim injunction is not granted, Appellants would be subjected to irreparable loss. 120. The well settled principles for granting a temporary injunction, either under Order 39, Rules 1 and 8 C.P.C. or under Section 151 of C.P.C. in favour of a party, are:- (i) prima facie case, (ii) balance of convenience and (iii) irreparable loss. Apart from prima facie case, the party seeking injunction has to establish balance of convenience and irreparable injury also. A person who seeks aid of the Court must establish prima facie case in his favour though it is not necessary for him to show at that stage a clear legal title; but must satisfy the Court that there is a fair question to be tried. 121. Prima facie case means that there is a serious question to be tried and that the claim of the Plaintiffs is not frivolous or vexatious. It may not be necessary for the Plaintiff to make out a clear, legal title, but he has to satisfy the Court that he has fair question to be tried. A temporar....
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....tiatives (SI) Department, dated 20.11.2009, Government constituted a High Power Committee (HPC) and discussed the proposal of Chennai Metro Rail for transfer of lands of State Government departments/Boards/Corporation of Chennai both on permanent and temporary basis. CMRL proposed to locate Central Metro Station [Corridor I & II] and other allied facilities in the land belonging to the Chennai Corporation which was leased out to V.P. Hall Trust and or Government lands. 124. Most of the land proposed for Chennai Metro Rail Project is Government land. Government lands cater to 75% of the project land requirement and only 25% of the project land requirement is proposed on private patta lands. Land in Block No. 28 in T.S. No. 1269/4 in Vepery village, Fort Tondiarpet Taluk belonging to the Chennai Corporation to an extent of 2187 sq. mts. was directed to be transferred and alienated to CMRL in a meeting held by the HPC on 22.07.2010 and a Government Order to that effect was passed by the Government in G.O.Ms. No. 132, Planning Development & Special Initiatives (SI) Department dated 27.08.2010 and under the said order, the Secretary to Government, Municipal Administration & Wat....
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....his Court has held: 11. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P.J....
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....ving the weight of authority. 48) In the case of State of U.P. Vs. Synthetics and Chemicals Ltd. - (1991) 4 SCC 139, His Lordship R.M. Sahai. J., in his concurring judgment set out the principles of per in curium and sub silentio has held thus: 40. In curia" literally means carelessness. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The quotable in law is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority (Young v. Bristol Aeroplane Co. Ltd.). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury's Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding. 41. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consider....
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....usly determined. (See State of U.P. v. Synthetics & Chemicals Ltd. SCC, para 41.) 50) In the case of Tika Ram Vs. State of Uttar Pradesh - (2009) 10 SCC 689, it was held: 104. We do not think that the law laid down in these cases would apply to the present situation. In all these cases, it has been basically held that a Supreme Court decision does not become a precedent unless a question is directly raised and considered therein, so also it does not become a law declared unless the question is actually decided upon. We need not take stock of all these cases and we indeed have no quarrel with the propositions settled therein... 16. On the above contentions, we have heard the learned counsel for the respondents, who would submit that the subject land is the property of the State, which was leased out to the Trust with certain conditions, and, as there was violation of conditions, coupled with the need of the land for railways for a public purpose, the State has resumed the land after following the due procedure and, hence, the act of the State in resuming the land cannot be faulted with. 17. Mr. P.H. Arvind Pandian, learned Additional Advocate General appearin....
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.... of Property act, 1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the Government to, or in favour of, any person whomsoever; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed. 3. Government grants to take effect according to their tenor:- All provisions, restrictions, conditions and limitations, contained in any such grant or transfer as aforesaid shall be valid and the effect according to their tenor, any rule of law, statute or enactment of the contrary notwithstanding. 10. The combined effect of the above two sections of the Grants Act is that terms of any grant or terms of any transfer of land made by a government would stand insulated from the tentacles of any statutory law. Section 3 places the terms of such grant beyond the reach of any restrictive provision contained in any enacted law or even the equitable principles of justice, equity and good conscience adumbrated by common law if such principles are inconsistent with such terms. The two provisions are so fram....
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....ot pressed. That they were not pressed is also clear from the Judgment of the Trial Court. It sets out all the arguments of the parties. No submission on the question of ownership of land by the Plaintiff and/or that the land was not on old grant terms has been recorded. If it was argued and their submissions were not recorded cross objections should have been filed particularly when in the last paragraph the Trial Court clarifies that the Government could resume the land after following due procedure of law. There could be no question of resumption if it was being disputed that the Government was the owner of the land. If Mr. Andhyarujina is right and the parties had not given up this contention, then it would be worse for the Appellants inasmuch as it would then mean that the trial Court had not accepted Plaintiffs/Appellants claim to ownership of land and had negatived it. 34. The Appellants never went in Appeal against the Judgment of the Trial Court. Even when the Respondents went in Appeal no cross objections were filed. Even before the first Appellate Court it has not been stated that their submissions were not dealt with and/or that the portion of the Judgment perm....
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.... evidence before the Trial Court and require no interference. 37. Once it is admitted that land was on old grant terms it is irrelevant to argue that it is not shown that Ambala was under the Bengal Army. The same would be the position when on evidence Court has held that land is on old grant terms. (iv) Jilubhai Nanbhai Khachar and others vs. State of Gujarat and another, reported in 1995 Supp. (1) SCC 596: 32. In Subodh Copal's case Patanjali Sastri, CJ, held that the word 'deprived' in clause (1) of Art. 31 cannot be narrowly construed. No cut and dry test can be formulated as to whether in a given case the owner is deprived of his property within the meaning of Art. 31; each case must be decided as it arises on its own facts. Broadly speaking it may be said that an abridgement would be so substantial as to amount to a deprivation within the meaning of Art. 31, if, in effect, if withheld the property from the possession and enjoyment by him or materially reduced its value. S.R. Das, J, as he then was, held that Clauses (1) and (2) of Art, 31 dealt with the topic of 'eminent domain', the expressions 'taken possession of or 'a....
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....to the right of the sovereign to take it for a public purpose. This right is called "eminent domain. At p. 386 it was further stated that: The sovereign power vested in the State to take private property for the public use, providing first a just compensation therefore. A superior right to apply private property to public use. A superior right inherent in society, and exercised by the sovereign power, or upon delegation from it, whereby the subject matter of rights of property may be taken from the owner and appropriated for the general welfare. The right belonging to the society or to the sovereign, of disposing in cases of necessity, and for the public safety, of all the wealth contained in the state is called eminent domain. The right of every government to appropriate, otherwise than by taxation and its police authority, private property for public use. The ultimate right of sovereign power to appropriate not only the public property but the private property of all citizens within the territorial sovereignty, to public purpose. Eminent domain is in the nature of a compulsory purchase of the property of the citizen for the purpose of applying to the public use.....
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.... the Government in the light of the provisions of the first condition of Regulation 6 and the whole of Regulation 7 of Order 179 of 1836. The question whether the Government must pay compensation or whether they can take the stand that the grantee may remove the structure and the quantum of compensation payable would be considered in that proceeding. 14. It is contended by the learned counsel for the respondent that in both the cases aforementioned this Court referred to and relied on the decision in this very case (Union of India v. Harish Chand Anand) and that the decision having been set aside and the appeal restored to file, they have no precedential value. We cannot agree. Apart from relying on the decision in this case which was subsequently set aside, the learned Judges also approved the view taken by the Delhi High Court in Raj Singh case. In any case, we are also of the view that the process of resumption of land in terms of Clause (5) of the grant does not get indefinitely postponed till the dispute as to compensation is determined according to law. In other words the determination of compensation after hearing the affected parties, though mandatory, is not a con....
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....ave heritable and transferable rights. As regards the power of Municipal Boards, the quotation of the Court below from the Municipal Manual, p. 261, shows that Nazul is at all times liable to resumption by the Government. Therefore, no matter what action is taken by the Municipal Board, the power of Government to resume the nazul remains. For these reasons, we consider that the Court below was correct in decreeing this suit for resumption and we dismiss this second appeal with costs. (ii) Collector of Bombay vs. Nusserwanji Rattanji Mistri and others, reported in AIR 1955 Supreme Court 298: 15. Then there remains the question whether the sale deed, Exhibit A, imposes any limitation on the right of the Crown to assess the lands. The deed conveys the lands to the purchasers absolutely "with all rights, easements and appurtenances whatsoever" to be held "for ever". It does not, however, recite that they are to be held revenue-free. But it is argued for the respondents that where there is an absolute sale by the Crown as here, that necessarily imports that the land is conveyed revenue-free; and Section 3 of the Crown Grants Act No. XV of 1895 and certain observations ....
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....hole Act was intended to settle doubts which had arisen as to the effect of the Transfer of Property Act, 1882, and must be read with reference to the general context...... In this view, Section 3 must also be construed in the light of the preamble, and so construed, it cannot, for the reasons already given, have any bearing on the rights of the parties. Moreover, that section only enacts that "all provisions, restrictions, conditions and limitations over" shall take effect according to their tenor, and what is relied on is not any provision, restriction, condition or limitation over, in Exhibit A which according to its tenor entitles the respondents to hold the lands rent-free, but the absolute character of the interest conveyed under Exhibit A. Therefore, Section 3 does not in terms apply. (iii) Fruit & Vegetable Merchants Union, Subzi, Mandi, Delhi vs. Delhi Improvement Trust, Regal Buildings, Connaught Place, New Delhi, reported in AIR 1957 SC 344: 19. That the word "vest" is a word of variable import is shown by provisions of Indian statutes also. For example, s. 56 of the Provincial Insolvency Act (V of 1920) empowers the court at the time of the ma....
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....at the structure was the property of the Trust. In this connection reference may be made to the decision of this Court in Bhatia Co-operative Housing Society Ltd. v. D. C. Patel. The case is not on all fours with the facts of the present case. But the following observations of Das J. (as he then was) at p. 195 of the report are pertinent:- It is true that the lessee erected the building at his own cost but he did so for the lessor and on the lessor's land on agreed terms. The fact that the lessee incurred expenses in putting up the building is precisely the consideration for the lessor granting him a lease, for 999 years not only of the building but of the land as well at what may, for all we know, be a cheap rent which the lessor may not have otherwise agreed to do. By the agreement the building became the property of the lessor and the lessor demised the land and the building which, in the circumstances, in law and in fact belonged to the lessor. The law. of fixtures under s. 108 of the Transfer of Property Act may be different from the English law, but s. 108 is subject to any agreement that the parties may choose to make. Here, by the agreement the building became ....
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....ble for enforcing the provisions of s. 386 (or s. 437 now) against the State it cannot be intended to be enforced by prosecution resulting in fine which would go to the State itself. In these circumstances it must be held that by necessary implication the State is exempt from the penal provisions contained in s. 488 (now s. 537). I would therefore allow the appeal, set aside the judgment of the High Court and restore the order of acquittal by the Magistrate. (v) State of Orissa vs. Ram Chandra Dev and another, reported in AIR 1964 Supreme Court 685: (4) When these petitions were argued before the High Court, the High Court took the view that it was impossible for it to decide the important question of title in writ proceedings under Art. 226. It expressed the opinion, and we think rightly, that such a question of title can be decided only in a properly constituted suit where both parties would get sufficient opportunity to adduce all material evidence bearing on the question in dispute. Having reached this conclusion, the High Court proceeded to examine the narrow question as to whether the ex-Zamindars should be maintained in their possession of the Maliahs until....
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....ther or not the appellant can recover possession without filing a suit, are questions on which we propose to express no opinion in the present appeals. Ordinarily, where property has been granted by the State on conditions which make the grant resumable, after resumption it is the grantee who moves the Court for appropriate relief, and that proceeds on the basis that the grantor State which has reserved to itself the right to resume may, after exercising its right, seek to recover possession of the property without filing a suit. But apart from this aspect of the matter, it is difficult to see how the High Court was justified in issuing the writ in the present appeals the inevitable consequence of which would be that the respondents would remain in possession of the property until the appellant files a suit against them; and that, in our opinion, would not be justified unless questions of title are determined and it is held that the appellant must file a suit before the respondents can be dispossessed. It appears that in issuing the writ in favour of the respondents, the High Court failed to appreciate the legal effect of its conclusion that questions of title cannot be tried in wr....
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.... to or in favour of any person whosoever, but every grant and transfer shall be construed and take effect as if the said Act had not been passed. Section 3 enjoins that all provisions, restrictions, conditions and limitations ever contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor any rule of law, statutes or enactment of the Legislature to the contrary notwithstanding. It is thus evident that the ordinary rule applicable to a grant made by a subject does not apply to a grant made by the sovereign authority, and the giants made by the sovereign are to be construed most favourably for the sovereign. It is capable of important relaxations in favour of the subject. If the intention is obvious, a fair and liberal interpretation must be given to the grant to enable it to take effect; and the operative part, if plainly expressed, may take effect notwithstanding qualifications in the recitals. In cases where the grant is for valuable consideration, it is construed in favour of the grantee, for the honour of the sovereign; and where two constructions are possible, one valid and the other void, that which is valid ought to be preferr....
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....me to the conclusion that no such notice was necessary and that the defaulting lessee cannot claim the benefit of a notice in writing to complete the forfeiture he has incurred, and that the lessor has to simply express an intention that he is going to avail of the forfeiture and that can be done by the filing of the suit, as in English law, in all cases not governed by the Transfer of Property Act. In this case no notice to determine the grant was necessary. The Government by an overt act can indicate that they are determining the grant and resuming the land and re-entering and taking possession of the land. Admittedly no such suit in such a case is necessary. We have therefore to go by the words of the assignment made in this behalf. Nothing beyond what is contained in the assignment order is necessary to be looked into. It is also perhaps relevant to refer to. In that case it was held that a tenant of a service tenure who refuses to perform his services is liable to be ejected even without a notice to quit. It was found that it was an incident of a service tenure that the holder thereof is liable to ejectment upon refusal to perform service; as this incident would be ma....
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....f the Provinces which Tenancy Act, as enacted by the Provincial Legislature. United Provinces as it affected the rights conferred upon a grantee under a Sannad. The contention then was that since under the terms of the grant it was open to sannad. The contention to deal with the land and the tenancy as he liked, the impugned to the sannad-holder far as it interfered with his right to deal with his tenants in any impugned legislation, in so to the terms of the grant. The Judicial Committee pointed out that any way was contrary power could not be attacked and the Statute regulating the relations that the legislative landlord and the tenant, though it might affect or diminish the rights between the landlord possessed earlier, did not in any way run contrary to Section 3 of the Government Grants Act. By making a grant of that description, the legislature did not deprive itself of any power to legislate within the scope of its authority, and the contention that by reason of the sannad, the pre-existing relations between the sannad-holder and his tenants could not be interfered with by legislation of this kind was repelled, and it is in that context. Nor do the observations of the Suprem....
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....rovision excluding the State from its operation, for such an exclusion from the operation of any particular enactment may be found in a different enactment covering the same field. In so far as the Madras City Tenants Protection Act provides for the control over the eviction of cultivating tenants, though the relevant section excluding its operation in the case of lands belonging to certain specified bodies are concerned does not expressly refer to the exclusion of lands belonging to the State, the Government Grants Act confers that exclusion. (viii) Maharaj Singh vs. State of Uttar Pradesh and others, reported in (1977) 1 SCC 155: 15. In the instant case the Act contemplates taking over of all zamindari rights as part of land reform. However, instead of centralizing management of all estates at State level, to stimulate local self-government, the Act gives an enabling power--not obligatory duty--to make over these estates to Gaon Sabhas which, so long as they are in their hands, will look after them through management committees which will be under the statutory control of Government under s. 126. Apart from management, no. power is expressly vested in the Sabhas....
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....ent it trenched on Central legislation on the same subject. And the latter for the conclusion that, 'however, sales tax cannot be charged on industrial alcohol in the present case, because under the Ethyl Alcohol (Price Control) Orders sales tax cannot be charged by the State on industrial alcohol'. Reliance on Indian Cement Ltd. (supra) was under complete misapprehension. The State in that case attempted to levy cess on royalty. It was held to be invalid. To save it the State attempted to justify it as a tax in exercise of power under Entry 50 of List II. The submission was negatived as the legislative power of State under Entry 50 of List II was 'subject to any limitation imposed by the Parliament by law relating to mineral development'. The Bench held that in view of the Parliamentary legislation under Entry 54 of List 'I and the declaration made under Section 2 and provisions of Section 9 of the Act the State legislation was overridden to that extent. No such restriction or limitation is placed under Entry 54 of List II except that the exercise of power has been made subject to the provisions of Entry 92 of List I. (x) Commissioner of Income Tax vs.....
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.... or attempted alienation by him. The Crown is not specifically mentioned in the Act, and it may be assumed that it was not designed to impose fetters of this description upon the discretion of the Crown, especially as to the creation of inalienable jahgirs in grants made for public services; but it has been thought better to set the question at rest by express legislation. Upon a late occasion the Government of India were advised that it is not competent for the Crown to create an inalienable and impartible estate in the land comprised in any Crown grant, unless such land has heretofore descended by custom as an impartible Raj. The second sub-section of the Bill is intended to obviate this inconvenience by providing that all Crown grants are to be construed according to their tenor, notwithstanding any rule of law which might otherwise affect their operation. 1. Title and extent: (1) This Act may be called The [Government] Grants Act, 1895. (2) It extends to the whole of India except [the territories which, immediately before the 1st November, 1956, were comprised in Part B States]. 3. Government grants to take effect according to their tenor: ....
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....to remain in possession, the State cannot take unilateral possession without taking recourse to the procedure, provided under the Act. It is, therefore, clear that it would have been open to the respondent to have a notice issued to the appellant and give time to vacate the premises within 10 days or 15 days and, therefore, could leave resumed possession with minimal use of police force. We cannot give and direction in this case since possession was already resumed. We have directed not to create third party right in the property. We are not inclined to interfere with the order. 10. Shri Sorabjee contended that the appellant is entitled to notice before the order of termination of grant made and so the action is bad in law and so the appellant is entitled to restitution of the property. We are not inclined to agree with him. The recourse to Article 226 of the Constitution, to establish title would not be proper remedy. In this case, we are not inclined to go into the question for the reason that the High Court has held that the writ petition is not maintainable. After termination of the licence by the Government under the Government Grants Act, the Estate Officer appointed....
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....erms of such grant from the provisions of any other law. we extract the above two provision hereunder: 2. Transfer of Property Act, 1882, not to apply to Government grants. - Nothing in the Transfer of Property Act, 1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of, any person whomsoever; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed." - "Government grants to take effect according to their tenor:- All provisions, restrictions, conditions and limitations, contained in any such grant or transfer as aforesaid shall be valid and the effect according to their tenor any rule of law, statute or enactment of the contrary notwithstanding. 10. The combined effect of the above two sections of the Grants Act is that terms of any grant of terms of any transfer of land made by a government would stand insulted from the tentacles of any statutory law. Section 3 places the terms of such grant beyond the reach of any restrictive provision contained in any enacted law or even t....
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....f the High Court has incorrectly reversed it. (xvi) Union of India and others vs. Kannadapara Sanghatanegala Okkuta & Kannadigara and others, reported in : (2002) 10 SCC 226: 5. We do not find any basis for the High Court coming to the conclusion that the decision of the Union Cabinet was vitiated on account of legal malafides. Merely because an administrative decision has been taken to locate the headquarters at Bangalore, which decision is subsequently altered by the same authority, namely, the Union Cabinet, cannot lead one to the conclusion that there has been legal mala fides. Why the headquarters should be at Hubli and not at Bangalore, is not for the court to decide. There are various factors which have to be taken into consideration when a decision like this has to be arrived at. Assuming that the decision so taken is a political one, it cannot possibly give rise to a challenge on the ground of legal mala fides. A political decision, if taken by a competent authority in accordance with law, cannot per se be regarded as mala fide. In any case, there is nothing on the record to show that the present decision was motivated by political consideration. The obse....
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....iction to enter into and determine the same. By reference to nature of power Under Section 18 of the Act the Collector does not have power to withhold the reference. Once a written application has been made satisfying the requirements of Section 18, the Collector shall make a reference. The Collector has no discretion in the matter; whether the dispute has any merit or not is to be left for the determination of the Court. Under Section 30 the Collector may refer such dispute to the decision of the Court. The Collector has discretion in the matter. Looking to the nature of the dispute raised, the person who is raising the dispute, the delay in inviting the attention of the Court, and so on are such illustrative factors which may enter into the consideration by the Collector while exercising the discretion. If the Collector makes the reference it may be decided by the Court subject to its forming an opinion that the dispute was capable of reference and determination under Section 30 of the Act. In case the Collector refuses to make a reference under Section 30 of the Act, the person adversely affected by withholding of the reference or refusal to make the reference ....
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.... relevant factors, eschew from considering irrelevant factors and act reasonably within the parameters of the law, courts would keep off the same. Even on the test suggested by Dr. Pal we cannot travel outside this principle to sit in appeal on the decision of the Government. 19. The decision in B.S. Muddappa's case is distinguishable both on principle and on facts from the present case. The question in that case is whether 'park' can be allotted to a trust for setting up of a private nursing home. There is no application of mind by any of the authorities as to whether setting up a nursing home in place of a 'park' would amount to an improvement as contemplated under the statute with which this court was concerned in that case. In the present case, the problem is entirely different. The question before the Court is whether formation of zones is for efficient administration of Railways. On this aspect we have considered the rival contentions including the material placed before the Government of India and the criteria evolved for formation of the zones. The test whether such formation of zones is for the purpose of efficient administration of Railways ha....
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....mal lease containing the terms and conditions of the Govt. Grant came to be executed between the erstwhile ruler and the Government of U.P. but it is not in dispute that the possession of the lands under the grant was taken on the basis of the proposal of the government, contained in the letter dated 29.8.1950. The rights and liabilities of the parties are governed by the terms of the said Govt. Grant. (xxi) Pradeep Oil Corporation vs. Municipal Corporation of Delhi and another, reported in (2011) 5 SCC 270: 45. By reason of the agreement in question, the buildings in question do not belong to the Administration. Admittedly, it belongs to the grantee i.e. appellant herein. As discussed hereinbefore, the Oil tanks has been construed as buildings for the purposes of tax. Therefore, Section 119 of the MCD Act would not apply to the building in question. That being the case, the grantee/appellant is liable to pay tax although the ownership of the land may belong to the Administration. 46. Section 115 of the MCD Act clearly provides that the general tax shall be payable in respect of lands and buildings. Such lands and buildings may be in lawful occup....
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....ite assessment only. In the present case vacant land or property of Railways is not sought to be taxed as was in the case of HUDCO Vs. MCD under section 120(1) DMC Act, but property tax/Composite Assessment is sought to be made on the installations/ storage depots having been constructed by the appellant-by virtue of Section 120(2) DMC Act. It is important to notice that w.e.f. the date of execution of lease deed and construction made thereon by HUDCO, HUDCO has been paying the property tax. HUDCOs case is therefore not applicable. (xxii) Government of Tamil Nadu vs. Mecca Prime Tannery and others, reported in (2012) 6 MLJ 273: 27. The Supreme Court in the case of Fruit & Vegetable Merchants Union vs. Delhi Improvement Trust reported in A.I.R. 1957 S.C. 344, thoroughly discussed the meaning of the word vest while interpreting different provisions of the U.P. Town Improvement Act, 1819. Their lordships first quoted the following passage of the observations made by Lord Cranworth in Richardson vs. Robertson, (1862) 6 L.T. 75:- 14....the word 'vest' is a word, at least of ambiguous import. Prima facie 'vesting ' in possession is the more natural meani....
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....of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them. (xxiii) Azim Ahmad Kazmi and others vs. State of Uttar Pradesh and another, reported in (2012) 7 SCC 278: 27. For taking possession, the State Government is required to follow the law, if any, prescribed. In the absence of any specific law, the State Government may take possession by filing a suit. 28. Under the provisions of the Land Acquisition Act, 1894, if the State Government decides to acquire the property in accordance with the provisions of the said Act, no separate proceedings have to be taken for getting possession of the land. It may even invoke the urgency provisions contained in Section 17 of the said Act and the Collector may take possession of the land immediately after the publication of the notice under Section 9. In such a case, the person in possession of the land acquired would be dispossessed forthwith. 29. However, if the Government proceeds under the terms of the Government Grants Act, 1895 then what procedure is to be followed. Section 3 of th....
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....ions imposed by the Government at the time of granting of lands to the choultry. Based on the said reports of the District Collector and the Principal Secretary and Commissioner of Land Administration and also considering the requirement of the land for implementation of Chennai Metro Rail Project, orders were issued by the Government vide G.O.Ms. No. 168, Revenue, dated 21.05.2012, for resumption of lands in Block No. 7 of T.S. Nos. 41 and 43/2, for violation of conditions of grant and alienation to Chennai Metro Rail Limited. Challenging the said G.O.Ms. No. 168, dated 21.05.2012, and notice of eviction, some of the lessees/tenants/occupants moved this Court by filing a batch of 21 writ petitions in W.P. No. 19469 of 2012. The said writ petitions were allowed and G.O.Ms. No. 168 was set aside by a learned single Judge of this Court vide his order, dated 26.11.2012, and the matter was remitted to the Government to issue notice to AGOT, Co-Trustee, CMRL and writ petitioners, who were in possession of the land/building, consider the objections to be filed, give them an opportunity of hearing and, thereafter, to pass fresh orders as expeditiously as possible. 22. The Government, c....
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.... District Collector, Chennai, has complied with all the directions of the Supreme Court viz., issuing notice, getting replies, examining with reference to legal position and sent her compliance report to the Government through the Principal Secretary and Commissioner of Land Administration with a request to pass orders for resumption of land in T.S. No. 41. The Principal Secretary and Commissioner of Land Administration has endorsed the report of the District Collector, Chennai. 25. Based on the records available, legal position, relevant rules and regulations, the Government has examined the proposal of the District Collector and the Principal Secretary and Commissioner of Land Administration; considered the objections raised by AGOT, Co-Trustee, lessees/tenants/occupants in depth vide the annexure; and decided to accept the proposal for resumption of land and alienation to Chennai Metro Rail Limited. Accordingly, the Government passed G.O.Ms. No. 380, Revenue [LD1(1)] Department, dated 28.09.2013, which was impugned in the writ petitions filed before the learned single Judge, against whose order these Writ Appeals are filed. By the said G.O., the District Collector was directe....
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....nks fit respecting any Trust property vested in the Official Trustee, or the income or produce thereof. Section 29: 29. Transfer of Trust property by Official Trustee to original Trustee or any other Trustee. (1) Nothing in this Act shall be deemed to prevent the transfer by the Official Trustee of any property vested in him to (a) the original Trustee (if any); or (b) any other lawfully appointed Trustee; or (c) any other person if the Court so directs. (2) Upon such transfer such property shall vest in such Trustee, and shall be held by him upon the same Trusts as those upon which it was held prior to such transfer, and the Official Trustee shall be exempt from all liability as Trustee of such property except in respect of acts done before such transfer: Provided that, in the case of any transfer under this section, the Official Trustee shall be entitled to retain out of the property any fees leviable in accordance with the provisions of this Act. (3) Section 3 of the Government Grants Act:- 3. Government grants to take effect according to their tenor. All provisions, restrictions, conditions and lim....
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....pensation or nil compensation or its illusiveness has to be justified by the State on judicially justiciable standards. Measures designed to achieve greater social justice, may call for lesser compensation and such a limitation by itself will not make legislation invalid or unconstitutional or confiscatory. In other words, the right to claim compensation or the obligation to pay, though not expressly included in Article 300-A, it can be inferred in that Article and it is for the State to justify its stand on justifiable grounds which may depend upon the legislative policy, object and purpose of the statute and a host of other factors. Doctrine of Sub-silentio: 30. It is contended that pronouncements of law which are not part of the ratio decidendi and are not authoritative and the same are delivered without reference to the relevant provisions of the Act and decisions which are not express and not founded on reasons nor they proceed on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Therefore, this Court is not precluded from considering the relevant provisions of law to the facts of this case. 31. Th....
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....ernment to withdraw exemption granted in certain lands, has extensively discussed the scope of Article 300-A and to what extent, it could be applied to the said property. In the said case, the Apex Court, while asserting the importance of the law providing for deprivation of property and where such law is unjust on account of payment of nil compensation, had authoritatively held that Article 300-A enables the State to put restriction on the right to property by a law that law, so as to be sustainable, must comply with other provisions of the Constitution. The limitation or restriction should not be arbitrary or excessive or what is beyond required in public interest and such limitation must not be disproportionate to the Constitution. The legislation providing for deprivation of the property under Article 300-A must be just and reasonable, as understood in terms of Articles 14, 19(1)(g), 26(b), 301 etc. The Court will have to examine the scheme of the impugned Act, its object, purpose as also the question whether payment of nil compensation or nominal compensation would make the impugned law unjust, unfair and unreasonable. It was further held therein that the rule of law, as a pri....
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....itutional polity consisting of certain primary organs, institutions and functionaries to exercise the powers provided in the Constitution. All powers belong to the people are entrusted by them to specified institutions and functionaries. This is enshrined in our Preamble with a statement of the Constitution. 40. Except the Indian Constitution, no other Constitution in the world combines under its wings such diverse peoples with different nations, religious, culture and in different stages of economic development into one nation and no other nation is faced with such vast socio-economic problems. It is a noble and grand vision carried out in part by conferring fundamental rights on the people. Legislature, Executive and Judiciary have been created and constituted to serve the people. The commitment of the Constitution to the social revolution through rule of law lies in the effectuation of the fundamental rights and directive principles as supplementary and complimentary to each other. We can say that the preamble, fundamental rights and directive principles of State policy the Trinity are the conscience of the Constitution. 41. The Constitution of India, having solemn princip....
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....it has enabled the Constitution to stand erect neither bending nor breaking. 45. The significance of the Preamble is that it contains the fundamentals of our Constitution. The people of India resolved to constitute their country into a sovereign democratic republic. No one can suggest that the words and expressions in the Preamble are ambiguous in any manner. By their true import and connotation, it is well known that no question of any ambiguity is involved. 46. The objectives specified in the Preamble contain the basic structure of our Constitution, which cannot be amended in exercise of the power under Article 368 of the Constitution. The concept relating to "separation of powers among the legislature, the executive and the judiciary" and the fundamental concept of an independent judiciary are now elevated to the level of basic structure of the Constitution and are the very heart of the constitutional scheme. 47. Basic Structure of the Constitution of India consists of the following features: (1) Supremacy of the Constitution; (2) Republican and Democratic form of Government; (3) Secular character of the Constitution; (4) Separation o....
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....xercises judicial function, as Article 103 of the Constitution empowers the President to decide cases of disqualification of membership of the Houses of Parliament. According to this Article, if any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102, the question shall be referred for the decision of the President and his decision shall be final. Article 50 lays emphasis to separate judiciary from executive. But, in practice, we find that the executive also exercises the powers of judicial function as in appointment of Judges (Articles 124, 126 and 127). The legislature (either House of Parliament) also exercises judicial function in removal of President (Article 56) in the prescribed manner. Judiciary also exercises legislative power. High Court and Supreme Court are empowered to make certain rules, legislative in character. Whenever High Court or the Supreme Court finds a certain provision of law against the Constitution or public policy, it declares the same null and void and then amendments may be incorporated in the legal system. Sometimes, High Court and Supreme Court f....
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....ution, such as there is under the American Constitution, some such division of powers legislative, executive and judicial, is nevertheless implicit in our Constitution. Same view was expressed in Jayanti Lal Amrit Lal v. S.N. Rana, AIR 1964 SC 648. 55.4. Judiciary is independent and a separate wing of the Government. Executive or Legislature has no concern with the day to day functioning of the Judiciary. In Chandra Mohan v. State of U.P., AIR 1966 SC 1987, Supreme Court held: The Indian Constitution, though it does not accept the strict doctrine of separation of powers, provides for an independent judiciary in the States.... But, at the time the Constitution was made in most of the States the magistracy was under the direct control of the executive. Indeed, it is common knowledge that in pre-independence India, there was a strong agitation that the judiciary should be separated from the executive and that the agitation was based upon the assumption that unless they were separated, the independence of the judiciary at the lower levels would be a mockery. 55.5. In Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, the then Hon'ble Chief Justice ....
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....aration of powers is not possible in any form of Government. In view of the variety of situations, the legislature cannot foresee or anticipate all the circumstances to which a legislative measure should be extended and applied. Therefore, legislature is empowered to delegate some of its functions to administrative authority (executive). But, one thing is notable that legislature cannot delegate its essential legislative power. 59. With the widening of the horizons of 'Judicial Activism', criticism emanated from a few percent of the people that the judiciary is overstepping its bounds and taking over the Government functions, but, this is not a justifiable thought. The Supreme Court and the High Courts act as watchman to keep Executive and Legislature within the bounds of law. Today, millions of people are suffering in the country because of the failures or inactions of the executive. It is the Judiciary, which is holding out hope for them. 60. The Indian Constitution, adopted by the Constituent Assembly on November 26, 1949, is a comprehensive document, containing 395 Articles and several Schedules. Besides dealing with the structure of Government, the Constitution m....
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....nd in different stages of economic development, into one nation, and no other nation is faced with such vast socio-economic problems. The Constitution cannot be interpreted like an ordinary statute, but as a Constitution, which, apart from setting up a machinery for the Government, has a noble and grand vision, which was put in words in the Preamble and carried out in part by conferring fundamental rights on the people and by the application of Directive Principles. 64. The Preamble of the Constitution of India, the Fundamental Rights and the Directive Principles, constituting a 'Trinity', assure to every person in a welfare State, social and economic democracy, with equality of status and dignity of persons. Political democracy without social and economic democracy would always remain unstable. Social democracy must become a way of life in an egalitarian social order. Economic democracy aids consolidation of social stability and smooth working of political democracy. The Preamble emphatically declares that we have given to ourselves the Constitution with a firm resolve to constitute a sovereign, socialist, secular, democratic, republic, with equality of status and of op....
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.... From then onwards, the management of the Trust and the properties attached to it were under the control of the AG & OT. As per the Scheme Decree, the AG & OT of Tamil Nadu leased out the lands in T.S. No. 41 to various tenants and collected rent. 69. While that being so, having regard to the unprecedented growth of population in general with particular reference to the Metropolitan City of Chennai, there was an imminent need to provide better transportation facilities to the commuters as also office goers and business people, which persuaded the State to expand the rail transport facility in the City of Chennai and for such avowed object, CMRL had planned a project called Chennai Metro Rail Project which aimed for construction of two corridors under Phase-I. Corridor I starts from Washermenpet and ends at Airport at a length of 23.1 kms. and Corridor II starts from Chennai Central and ends at St. Thomas Mount Station at a length of 22 kms. As per the project, portions of Corridor I with a length of 14.3 kms between Washermenpet and Saidapet and portions of Corridor II with a length of 9.7 kms. from Chennai Central to Anna Nagar would be underground Corridors and the remaining p....
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..... It is true that the State Government is empowered to invoke appropriate jurisdiction under the authority of law to resume the land and vacate persons, who later on came to the picture in possession of the property, lawfully. 73. If that could be the position, the question, which arises for consideration is, as to, whether the State, by invoking eminent domain, can resume the land under the authority of law, namely, Section 3 of the Government Grants Act, 1895, notwithstanding any law for the time-being in force. Here again, another question arises to the effect that when the subject matter is concerned with two authorities, namely, Union of India and State of Tamil Nadu, and the property in question has already been vested with the judicial organ, viz., AG & OT, which comes under the purview of Official Trustees Act, is it appropriate for the State authority alone to take a decision for resumption of the land, that too without taking proper course in resumption of the land by approaching appropriate Scheme Court or in the absence of any order in respect of vesting, divesting, modification or any change in control and management of the property from the AG & OT Court, dealing w....
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....on shall be deprived of his property save by authority of law. (2) No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given. (3) No such law as is referred to in clause (2) made by the legislature of a State shall have effect unless such law, having been reserved for the consideration of the President, has received his assent. (4) If any Bill pending at the commencement of this Constitution in the Legislature of a State has, after it has been passed by such legislature, been reserved for the consideration of the President and has received his assent, then, notwithstanding anything in this Constitution, the law so assented to shall not be called in question in any court on the ground that it contravenes t....
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....vided for compulsory acquisition of property. Clause (3) of that Article provided that, no law referred to in clause (2), made by the legislature of a State shall have effect unless such law, having been reserved for the consideration of the President, has received his assent. Article 31-A confers protection upon laws falling within clauses (a) to (e) of that Article, provided that such laws, if made by a State Legislature, have received the assent of the President. Clause (a) of Article 31-A comprehends laws of agrarian reform. Right to property is a human right as also a Constitutional right. But, it is not a fundamental right. At the same time, each and every claim to property would not be a property right. 78. In Ramanatha Aiyar's The Law Lexicon, Reprint Edn., 1987, at p. 1031, it is stated that the property is the most comprehensive of all terms which can be used, inasmuch as it is indicative and descriptive of every possible interest which the party can have. The term property has a most extensive signification, and, according to its legal definition, consists in free use, enjoyment, and disposition by a person of all his acquisitions, without any control or diminutio....
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....iz., Article 300-A and the legal rights. Therefore, the State must exercise this power with great care and circumspection. At times, compulsory acquisition of land is likely to make the owner/occupant landless. The degree of care required to be taken by the State is greater when the power of compulsory acquisition of land is exercised, because that results in depriving the individual of his property. 81. In this case, though the State, through the District Collector of Chennai and also AG & OT concerned, made applications before the AG & OT Court under the jurisdiction of the High Court of Madras for taking suitable orders, such applications have subsequently been withdrawn by them for reasons best known to them. In the matter in question, when the subject land is governed by an authority of law being controlled and maintained by the judiciary, then involvement of judiciary could not be bye-passed or dispensed with merely by invoking the Government Grants Act. The basic structure of the Constitution defines certain distinct and separate powers for Executive and Judiciary. In the event of Executive acting independently under the authority of law, the role of judiciary to look int....
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....e State, in our considered opinion, bypassed the procedures to be followed and is not the appropriate method to be adopted by them for resumption of the land, though the said land is required for a public purpose. Rule of law is supreme beginning with the fundamental to special features of Constitution and no authority under them can waive such jurisdictional limits contemplated under law. This Court has already taken a view in one way or the other in interpreting Section 3 of the Government Grants Act, 1895 and the basic structure of the Constitution is the fundament of the Constitution. Therefore, the three organs should always be within the Rule of law. 84. In this regard, the crucial question that arises for consideration in this case is, when one organ of democracy, namely, the executive/Government has been empowered to entrust its own property to another organ viz., judiciary under which the control has been given to Administrator General & Official Trustee (AGOT) under an enactment, on the principle of eminent domain, can the Government invoke another enactment i.e., Government Grants Act under Section 3, resuming the land on its own, without resorting to any procedure co....
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....allowed, the same would seriously prejudice and cause unnecessary hurdles in proceeding with the project. Holding so, the Supreme Court set aside the Division Bench judgment of this Court and allowed W.A. Nos. 68, 69, 89 and 90 of 2013, filed by State and CMRL, thereby paving way for resumption of land for Chennai Metro Rail Project. Allowing the appeals, the Supreme Court, however, directed the appellants therein, who were State and CMRL, to value the buildings belonging to the first respondent therein, who is not a party to the proceedings in these appeals, standing in T.S. No. 43/2, determine the compensation and pay the same to the first respondent within three months. By the said judgment, the first respondent therein was directed to surrender possession of the lands through AGOT within four weeks from the date of receipt of copy of the said judgment. The relevant portions of the judgment of the Supreme Court are as under: 18. While considering the submissions of learned Additional Solicitor General and Mr. Gopal Subramanium, learned Senior Counsel for the First Respondent, inasmuch as we find that the reasoning of the Division Bench in having stated that the undergro....
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....ench having been reached without properly examining the relevant documents relating to the Chennai Metro Project, namely, the plans, the project schedule and the other averments placed before the Division Bench, the impugned order of the Division Bench cannot be sustained. 19. Mr. Gopal Subramanium, learned Senior Counsel appearing for the First Respondent in support of his submission that the lands situated in Survey No. 43/2 were not required at all for the purpose of carrying out the Metro Project and referred to an affidavit filed before the Division Bench by the Managing Director of Chennai Metro Rail Limited. The learned Senior Counsel submitted that in the said affidavit the reference to the Metro Rail Station planned along the Poonamallee High Road has been stated and while referring to the same, a specific reference was made to the private buildings located opposite to Picnic Hotel and that acquisition of those private lands would cost clearly to the State Exchequer apart from evacuation of the tenants/owners would consume considerable length of time which would in turn cause delay in the construction of the underground Station. When we perused the said affidavit ....
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....3/2 belong to the State. At the time when the lands were granted and assigned in favour of Sir Ramaswamy Mudaliar Trust vide GO Ms. Nos. 763 and 253 dated 09.12.1898 and 17.01.1899 respectively, conditions were imposed to the effect that the lands would revert back to the Government when it ceases to be used for the purpose for which it was granted and that should the property at any time resumed by Government, the compensation payable should in no case exceed the cost or the then present value whichever shall be less of any building erected or other works executed in the land. Though, learned Additional Solicitor General sought to contend as was also contended before the High Court that by leasing out the lands to different parties the condition No. 1 was violated, namely, that the land was put to different use than for what it was granted, we do not find any good grounds to accept the same. On the other hand, we find that the Trust itself was vested with the AG & OT on 18.08.1970 pursuant to a Scheme Decree framed by the High Court in C.S. No. 90 of 1963. From then onwards, the AG & OT was administering the Trust and was apparently fulfilling the purpose for which the Trust came ....
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.... resuming the lands, the State Government along with the Chennai Metro is bound to compensate the First Respondent for the buildings which were erected in the said land in Survey No. 43/2 based on the valuation to be made by the appropriate Authorities. 24. Therefore, while allowing the Appeals of the State Government as well as the Chennai Metro and while setting aside the Judgment of the Division Bench, Writ Appeal Nos. 68, 69, 89 and 90 of 2013 are allowed. We, however, direct the Appellants to value the buildings belonging to the First Respondent standing in Survey No. 43/2 and determine the compensation and pay the same to the First Respondent. The said exercise of valuation and payment of compensation shall be effected within three months from this date. 25. In the light of our above orders, the First Respondent is directed to surrender possession of the lands in Survey No. 43/2 in an extent of 5644 sq. ft. through the AG & OT within four weeks from the date of receipt of copy of this judgment. With the above directions, these appeals are allowed. 88. Judicial discipline binds us and the constitutional wisdom underlined under Article 141 of the Constituti....
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....tion. The limitation or restriction should not be arbitrary or excessive. The legislation providing for deprivation of property under Article 300-A must be just, fair and reasonable, as understood in terms of Articles 14, 19(1)(g), 26(b), 301, etc. Thus, in each case, courts will have to examine the scheme of the impugned Act, its object, purpose as also the question whether payment of nil compensation or nominal compensation would make the impugned law unjust, unfair or unreasonable in terms of other provisions of the Constitution, as indicated above. 92. Therefore, we are constrained to hold that though there is a violation of Rule of Law by the authorities in resumption of lands in question, with heavy heart, by giving due respect to the ratio decidendi of the Supreme Court with regard to the very same subject lands, we are left with no other choice but to follow the same under Article 141 of the Constitution. 93. However, while parting with, we feel it our duty to say that the executive action taken in this case by the State and its officers is incompatible to the basic principle of the Rule of Law. The facts and the position in law are (1) that the buildings constructed ....