AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2014 (6) TMI 1022
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 appellants, was illegal and unjustified. 3. Acco....
X X X X Extracts X X X X
X X X X Extracts X X X X
....il 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 General, directed that all the affected parties sh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pensation 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: (11) We consider that both these contentions are unsound and t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 these circumstances the action of the Government in taking the law into their ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9 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. (iii) K.T. Plantation Pvt. Ltd. and another vs. State of Karnataka, reported in AIR 2011 SC 3430: 11....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 depends upon the terms of the statute and the legislative policy. Article 300A, however, does not prohibit the payment of just compensation when a pers....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 appellants before initiating the impugned action, as directed by the Supreme Court. In support of his contentions, the learned Senior Counsel has relied upon a decision....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 taking the action to oust the appellants from their possession. He has relied on the following decisions: (i) Virendra Singh and others vs. State of Uttar Pradesh, reported in AIR 1954 SC 447: 29. Now wha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eir 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 which all were citizens in a new order having but one i.e., and owing but one allegiance: devotion, loyalty, ideality, to the Sovereign Democratic Republic that is India. At one stroke all other territorial allegiances were wiped out and the past was obliterated ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 held by this Court in Seshagiri Rao's case (1964) 2 Mys. LJ 287 (supra). We have gone through the Award made by the Land Acquisition Officer. The Land Acquisition Officer appears to have valued the rights of the respondents in the lands acquired. Whether the valuation made by him is cor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....od, 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 SCC 139: 41.... In Lancaster Motor Company (London) Ltd. v. Bremith Ltd., [1941] IKB 675 the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by this Court in Municipa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ought 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 before a Juvenile Court, the Juvenile Court shall hold an enquiry in accordance with the provisions of Section 39. A reading of all these provisions referred to herein above makes it very clear that an enquiry as to the age of the juvenile has to be made only when he is brought or appears before the competent authority. A Police Officer or a Magistrate who is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se 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. Synthetics and Chemicals Ltd. & Anr., (1991) 4 SCC 139, reiterating the same view, this Court laid down that such a decision cannot be deemed to be a law declared to have binding effect as is contemplated by Article 141 of the Constitution of India and observed thus: A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ant 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 the terms whereof provide for foreclosure only and not for sale. In the case of the mortgage other than usufructuary mortgage, the mortgagee can file an application to pass a final decree that the mortgaged property or a sufficient part thereof be sold, and the proceeds thereof be paid into Court and applied in payment of what is found due to the defendant, and the balance, if any, be paid to the plaintiff or other persons entitled to receive t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re 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 empower the weaker sections of the society and to provide them their share of cake in the material resources of the community of which they were deprived from times immemorial for no fault of theirs. Having resolved to extend the benefits as a welfare measure, no unconstitutional condition can be imposed depriving the recipients of the benefits of their legitimate right to get compensation in case of taking over of the benefit even for a valid public purpose. The recipients cannot be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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 Cock & Chemicals Ltd. & Others, reported in AIR 2007 SC 2458: 114. The question again came up for consideration in Howrah Municipal Corpn. v. Ganges Rope Co. Ltd. [ (2004) 1 SCC 663], wherein this Court categorically held: The context in which the respondent Company claims a vested right for sanction and which has been accepted by the Division Bench of the High Court, is not a right in relation to ownership or possession of any property for which the expression vest is generally used. What we can understand from th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ant 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 State of U.P. While granting lease made it clear that if the demised premises are at any time required by the lessor for his or for any public purpose, he shall have the right to give one month's clear notice to the lessee to remove any building standing at the time on the demised property and within two months of the receipt of the notice to take possession thereof on the expiry of that period subject to the condition that if the lessor is willing to purchase the property on the demises premises, the lessees shall be paid for such building such amount as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ds, 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 counsel, even in matters of transfer of Trust property, as per the mandate of Section 29 of the Official Trustee Act, this Court alone is vested with the authority of ordering transfer of the Trust property. All these provisions of law have been completely breached and smashed by the Government under the arbitrary assumption to the effect that, it has its own authority and power to resume the Trust property of Rajah Sir Ramasamy Mudaliar without reference to this Court. Hence, the only course available to the State is to either move this Court under Section 25 of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cle 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 matter and the judgment of the inferior court is deemed to lose its identity and merges with the judgment of the superior court. In the course of time, this concept which was originally restricted to appellate decrees on the ground that an appeal is continuation of the suit, came to be gradually extended to other proceedings like Revisions and even the proceedings before quasi-judicial and executive authorities. (iii) Saraswati Devi (Dead) By Lr. vs. Delhi Development Authority and others, reported in (2013) 3 SCC 571: 34. What is the effect of provisional possession which was given to the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat 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 Sharda Devi holds is this: the acquisition of land wherein the ownership or the entirety of rights already vested in the State on which there are no private rights or encumbrance such land is beyond the purview of the LA Act. In other words, if the government has complete ownership or the entirety of rights in the property with it, such land cannot be acquired by the government by invoking its power of acquisition under the LA Act but if some private rights have been created in such property or the property has encumbrance(s), the acquisition of such land is not beyond the pale of the LA Act. 43. Madan Lal Nangia has been relied upon....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ney 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) At the time of acquisition of evacuee property under Section 12 of the 1954 Act if such property has interest of a private person, the interest of private person can be acquired under the LA Act even though the land is owned by the government. 46. What follows from proposition (i) is also this that after the acquisition of evacuee property under Section 12, if any encumbrance is created or interest of a private person intervenes therein, such land even if owned by the government can be acquired under the LA Act. This is in congruity and consonance with Sharda Devi as well. (iv) K. Guruprasad Rao vs. State of Karnataka and others, reported in (2013) 8 SCC 418: 94. In ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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. In the result, the appeal is allowed and the impugned order is set aside. The report of the Committee is accepted and the State Government is directed to implement the recommendations contained in Part V thereof including the recommendation relating to creation of Corpus Fund of Rs. 3,43,19,160 which shall be utilized for implementing the conservation plan for Jambunatheswara temple. However, it is made clear that respondent No. 18 shall be free to operate the Beneficiation plant subject to the condition that it shall procure raw material only through E-auction mode. 101. With a view to ensure that other protected monuments in the State do not suffer the fate of Jambunatheswara temple, we direct that the Committe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 a decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated under Article 141. He would finally contend that issuance of impugned orders completely ignoring the fact that appellants are in possession of the schedule property under a valid and subsisting lease is against the terms of the lease and without recourse to law and, thus, dismissal of writ petitions has resulted in a jeopardy to the right of appellants to livelihood, which needs interference by this Court in entirety. The learned counsel has cited following judgments: (i) Lancaster Motor Company Limited vs. Bremith Limited, reported in 1941 1 K.B.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ithout 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 consisting of himself and Mackinnon L.J., the reasoning of which appears to me to be quite inconsistent with the previous decision to which he had been a party in Gerard vs. Worth of Paris Ld. In Hirschorn v. Evans, a husband and a wife had a bank account in their joint names and it was held by Slesser L.J. And Mackinnon L.J., Greer L.J. Dissenting that inasmuch as the debt which the bank owed was not a debt due to the husband alone but to him jointly with his wife, it could not be attached to answer the judgment against these matters. The crucial matter to be observed is what is the relationship of the alleged debtor. That relationship must be one of debtor and creditor and unless it falls within that description the rule does not apply. That aspect of the mat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng 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 dharamasala, temple and shops not could the State could be said to be the owner of the property, irrespective of whether it was a trust, public or private having taking the possession unilaterally. It was open to the State to take appropriate legal action for the purpose. It was also held that the State could not remove them from possession except under the authority of law. The same view was reiterated by this Court in State of U.P. & Ors. vs. Maharaja Dharmander Pd. Singh & Ors. [ (1989) 2 SCC 505 at 516) thus: A lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry of earlier termination of the lease by forfeiture or otherwise. The use of the expression 're-entry' in the lease deed does not....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 principles which have been established in our system of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must thus be a tribunal competent by its constitution, that is by law of its creation, to pass upon the subject matter of the suit or proceeding; and, if that involves merely a determination of the personal liability of the defendant, it must be brought within its jurisdiction by service of process within the State, or his voluntary appearance. Due course of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty or property in its most comprehensive sense; to be heard, by testimony or otherwise and to have the right determination of the controversy by proof, every material....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o 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 over" which would be bad under the provisions of the Transfer of Property Act, such as conditions in restraint of alienations or enjoyment repugnant to the nature of the estate, limitations offending the rule against perpetuities and the like. But no question arises here as to the validity of any provision, restriction, condition, or limitation over, contained in Exhibit A on the ground that it is in contravention of any of the provisions of the Transfer of Property Act, and there is accordingly nothing on which Section 3 could take effect. 23. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ther 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. 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 a suit for claiming one or more of the reliefs specified in clauses (a) to (h) of sub-section (1) after consent in writing there prescribed has been obtained. Thus, when a suit is brought under s. 92, it is brought by two or more persons interested in the Trust who have taken upon themselves the responsibility of representing all the beneficiaries of the Trust. In such a suit, though all the beneficiaries may not be expressly impleaded, the action is instituted on their behalf and relief is claimed in a representative character. This position immediately attracts the provisions of explanation VI to s. 11 of the Code. Explanatio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 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 since it was framed have, on the whole, managed the trust properties and its affairs in a reasonable and responsible manner and that the allegations of breach of trust which had been made against them in the present suit have been held not to be proved by both the courts below. There can be no doubt that if a scheme is framed in a suit brought under s. 92, it should not be changed unless there are strong and substantial reasons to do so. This position is well established and cannot and has not been disputed before us. As observed by Halsbury, when a scheme has been settled by the Charity Commissioners, the Court will not interfere with it unless the Commissioners have acted ultra vires, or the scheme contains something wrong in principle or in law, or by reason of changed circumstances, the continuance of the charity under the constitution established by the scheme has become impracticable. This principle was laid d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 time. In view of the worsening situation in the national buffer stock and in the light of the experience gained during the past few years, the State Government was of the opinion that it was necessary and expedient to re-fix the stock limits of such dealers. This was expected to maximise procurement of wheat to meet the requirement of public distribution, as well as, the buffer stock. 48. It cannot be asserted that the restriction imposed by the State Government on wholesale dealers of wheat is either arbitrary or is of an excessive nature. The fixation of the stock limit of wheat to be possessed by wholesale dealers, at any time, at 250 quintals is an important step taken by the State Government to obviate hoarding and black-marketing in wheat which is in short supply. It is hardly necessary to emphasise the extent and urgency of the evil sought to be remedied thereby. Perhaps fixation of the minimum limit of wheat permitted to be possessed by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing 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 commodities at fair prices. It cannot be said that looking to the prevailing conditions, the imposition of such restrictions does not satisfy the test of reasonableness. Nor can it be said that the fixation of such stock limit is arbitrary or irrational having no nexus to the object sought to be achieved and is, therefore, violative of Art. 14. On the contrary, the limitation imposed fixing a stock limit for a wholesale dealer at 250 quintals is a reasonable restriction within the meaning of Art. 19(6) of the Constitution. 50. One further point requires to be noticed. The contention that the action taken by the State Government in issuing the impugned teleprinter message amounts to an 'intrusion' on the fundamental right to carry on trade or business under Art. 19(1)(g) or on the freedom of trade, commerce and intercourse under Art. 301 of the Constitution appears to be wholly misconceived. As already stated the instructions conveyed by the State Gov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ourt 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 or not whether 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. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn. explains the concept of sub silentio at p. 153 in these words: A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ired 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 a suit for claiming one or more of the reliefs specified in clauses (a) to (h) of sub-section (1) after consent in writing there prescribed has been obtained. Thus, when a suit is brought under s. 92, it is brought by two or more persons interested in the Trust who have taken upon themselves the responsibility of representing all the beneficiaries of the Trust. In such a suit, though all the beneficiaries may not be expressly impleaded, the action is instituted on their behalf and relief is claimed in a representative character. This position immediately attracts the provisions of explanation VI to s. 11 of the Code. Explanation VI provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. It is clear that s. 11 read with its explanation VI leads to the result that a decree passed in a suit instituted by persons to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of financial implications. It is submitted that given the fact that the budget for the year 1990-91 for disbursement of pension is Rs. 900 crores (as per page 11 of the Budget of the Railway Revenue and Expenditure of the Central Government for 1990-91), the additional liability which would arise by giving relief to the Petitioners would be insignificant in comparison. According to the petitioners as per their affidavit dated 15.9.88, the additional liability would come to Rs. 18 crores per annum and this figure would steadily decrease as the number of P.F. retirees diminishes every year due to the fact that this question arises only with respect to very old retirees, and a substantial number of them pass away every year. 60. The Government in its affidavit dated 21.9.88 has stated that the additional liability as far as the Railway employees are concerned, would be Rs. 50 crores a year. This is based on the assumption that there are 79,000 surviving P.F. retirees. Apart from the fact that this number of 79,000 was based on calculations made in 1988, and would be greatly reduced by this time, the petitioners submit that the actual number of survivors would only be about 38,000. T....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... State of U.P. and another vs. Synthetics and Chemicals Ltd. and another, reported in 1991 4 SCC 139: 5. Does this principle extend and apply to a conclusion of law, Which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. A decision passed sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular' point of law involved in the decision is not perceived by the Court or present to its mind' (Salmond 12th Edition). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd., [1941] IKB 675 the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by this Court in Municipal Corporation of Delhi v. Gumam Kaur, [1989] 1 SCC 101. The Bench held that, 'precedents sub-silentio and without argument are of no moment'. The Courts thus have taken recourse to this princip....
X X X X Extracts X X X X
X X X X Extracts X X X X
....me the land when needed for public purpose or as when the Government finds that the land is required for public purpose. In terms of the covenants, the Government is entitled to exercise its option to determine the lease though the lessee has been complying with the condition of payment of annual premium or rent and resume the land in accordance with terms of the grant. In that event the need to take recourse to acquisition and to make compensation does not arise. Take a case where the Government granted the lease of the open land with, permission to the lessee to construct a building for his quiet enjoyment with appropriate covenants and the lessee with permission constructed the building and by complying with the covenants of the lease was in quiet enjoyment. The self same property, when required for public purpose, the Government cannot unilaterally determine the lease and call upon the lessee to deliver the possession. Therefore, the Government is required to exercise the power of eminent domain by invoking the provisions under the Land Acquisition Act for getting such land. The Collector shall have to determine the compensation towards the leasehold interest held by the lessee....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aning it would be useful to so interpret the enactment as to harmonise it with the object which the Legislature had in its view. The Legislative aims and objectives set out in the earlier part of this judgment go to show that this Legislation has been made for taking care of the care and custody of a juvenile during investigation, inquiry and trial, i.e., from a point of time when the juvenile is available to the law administration and justice delivery system; it does not make any provision for a person involved in an offence by reference to the date of its commission by him. The long title of the Act too suggests that the content of the Act is the justice aspect relating to juveniles. 23. We make it clear that we have not dealt with the provisions of Chapter VI dealing with special offences in respect of juveniles. Prima facie, we feel that the view which we have taken would create no difficulty even in assigning meaning to the term juvenile as occurring in Chapter VI (Sections 41 to 45) of the Act because a juvenile covered by any of these provisions is likely to fall within the definition of neglected juvenile as defined in clause (l) of Section 2 who shall also have to be dea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n-joinder of necessary party, though the operative part of the order of the Division Bench stood merged in the decision of this Court, the remaining part of the order of Division Bench of the High Court cannot be said to have merged in the order of this Court dated 10.9.1986 nor did the order of this Court make any declaration of law within the meaning of Article 141 of the Constitution either expressly or by necessary implication. The statement of law as contained in the Division Bench decision of the High Court in M. Varadaraja Pillai's case would therefore continue to remain the decision of the High Court, binding as a precedent on subsequent benches of coordinate or lesser strength but open to reconsideration by any bench of the same High Court with a coram of judges more than two. 18. The Full Bench was not dealing with a prayer for review of the earlier decision of the Division Bench in M. Varadaraja Pillai's case and for setting it aside. Had it been so, a different question would have arisen, namely, whether another Division Bench or a Full Bench had jurisdiction or competence to review an earlier Division Bench decision of that particular Court and whether it cou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons fully and finally so far as the High Court is concerned. The hearing before the Full Bench shall be expedited as there are a number of writ petitions and a large number of cases are likely to be affected by the view that the Full Bench may ultimately take. In view of the writ petitions having been restored for hearing on the file of the High Court, we also clarify that all the interim orders, which were passed by the High Court shall also stand restored. Needless to say the High Court shall have the liberty of reconsidering the interim orders passed by it if any such occasion arises. (xiii) Zee Telefilms Ltd., and another vs. Union of India and others, reported in 2005 4 SCC 649: 282. Are we bound hands and feet by Pradeep Kumar Biswas (supra)? The answer to the question must be found in the law of precedent. A decision, it is trite, should not be read as a statute. A decision is an authority for the questions of law determined by it. Such a question is determined having regard to the fact situation obtaining therein. While applying the ratio, the court may not pick out a word or a sentence from the judgment divorced from the context in which the said question arose for con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ein could not have been validated on account of the time having lapsed for doing so. Once Sections 2 and 3 and the proviso are read in the manner indicated in MDA's case (cited supra) as also in the light of observations made by us, no question remains of any Constitutional invalidity. We are not at all impressed by the contention raised that the Amending Act cannot pass the test of Article 14. We hold accordingly. (xv) Rajendra Gupta and others vs. The Corporation of Chennai, reported in: 117. Even though, Appellants came into possession by virtue of deed of sublease in favour of their father N.D. Gupta, as discussed earlier, the main lease expired on 30.4.1985, the sublease also came to an end and the possession of Appellants is not lawful beyond 30.4.1985. As pointed out by the learned Judge under clause 6 of registered sub-lease dated 17.7.1968, Plaintiffs were obliged to surrender the superstructures to the Trust without claiming any compensation after the expiry of the initial period of 18 years from 01.4.1968 to 31.3.1986 or atleast the period of extended term of 22 years viz., 31.3.2008. Viewed from any angle, possession of Appellants are not lawful one beyond 30.4.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tiff showing that in all probability he is entitled to get permanent injunction sought before going through the evidence depending on the pleadings and documents placed before the Court. 122. As discussed earlier, term of lease of the Trust expired on 30.04.1985. Even though, Trust had obtained decree in O.S. No. 1349 of 1985, lease deed never came to be executed. In the mean while, Trust arrived at a compromise under which Trust had surrendered possession of Victoria Public Hall building and the demised land to the owner Corporation. Therefore, possession of Appellants beyond 30.4.1985 is not lawful possession. Assuming the best possible for the Appellants as per the lease deed dated 17.07.1968 for 18 years i.e. till 31.03.1986 and thereafter renewable for 22 years i.e. 31.03.2008. Even assuming the best possible for the Appellants, possession of the Appellants cannot be said to be lawful possession beyond 30.04.1985 entitling them to obtain interim injunction from the Court as against the true owner Chennai Corporation. The object of interlocutory Application is to protect the Plaintiff against the injury by violation of his right for which he could not adequately be compensate....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of finalising the alignment of Corridors and design of the Metro Station, an additional requirement of 955 sq. mts. in the Corporation land occupied by Picnic Hotel has been arrived at for locating station related structures above ground. The above said land shall be utilised for Central Metro Station, ventilation shaft, ancillary building, traffic integration etc. The said requirement was approved in the III High Power Committee held on 04.01.2011. Chennai Central underground Metro Station will be vital and key interchange between Metro Rail Corridor I & II where the transfer of passengers will take place between Corridor I & II at Chennai Central Metro Station which is stated to be the complex underground station with two levels (one for each corridor). This is to ensure inter modal integration for the public which will substantially reduce the traffic congestion in the City. The subsequent events and the predominant public purpose is an important factor to be taken into consideration. If any injunction is granted in favour of Appellants that would also stall the Chennai Metro Rail Project which is aimed at developing the infrastructure of the City of Chennai. 125. Upon conside....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ses sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio 12. In Gerard v. Worth of Paris Ltd. (k)., the only point argued was on the question of priority of the claimant's 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. Bre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....It has been explained as rule of sub-silentio. A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. (Salmond on Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. the Court did not feel bound by earlier decision as it was rendered without any argument, without reference to the crucial words of the rule and without any citation of the authority. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur. The bench held that, precedents sub-silentio and without argument are of no moment. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union Te....
X X X X Extracts X X X X
X X X X Extracts X X X X
....refore, for the welfare of the people of the State and in order to ease out the congestion, the State has taken immediate action to resume the land, which belongs to itself. He also submits that Section 3 of the Government Grants Act empowers the State to resume the land without any procedural impediment, as the land is immediately needed for the public purpose. Finally, he would contend that the ratio laid down by the Supreme Court in this regard is binding on the appellants, as their survey numbers have also been taken into consideration while rendering the finding, and the rules contemplated under the Government Grants Act have been rightly invoked by the State while proceeding with the impugned action and, therefore, there is no legal infirmity in the impugned order passed by the Government. The learned Additional Advocate General has relied upon the following authorities: (i) State of U.P. vs. Zahoor Ahmad, reported in (1973) 2 SCC 547: 16. Section 3 of the Government Grants 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. The meaning of sections 2 and 3 of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e completely regulated by the terms of the grant, even if such terms are inconsistent with the provisions of any other law. 11. The above legal position was recognised by the courts in India before the Constitution of India came into being. (Surja Kanta Roy Choudhary and Ors. v. Secretary of State and Raza Hussain Khan and Ors. v. Sayid Mohd. and Ors. AIR (1938) Oudh 175). The position continued to be so even after the Constitution came into force (State of U.P. v. Zahoor Ahmad. (iii) Chitra Kumar (Smt.) vs. Union of India and others, reported in (2001) 3 SCC 208: 32. We have considered the rival submission. In our view Mr. Rohtagi is quite right. It is now too late in the day for Mr. Andhyarujina's clients to take a contrary stand. Mr. Yogeshwar Prasad's clients have on facts lost in all Courts below. Notice to produce documents, given belatedly in some other case, is of no relevance so far as these Appeals are concerned. The practice of annexing irrelevant documents and trying to rely on them for the first time in the Appeal or in Review Petitions in the High Court should be deprecated. 33. In Civil Appeal Nos. 917-918 of 1998 it is clear that, at all stages, the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt was the owner of the land and that the land was on old grant terms. 35. When the Respondents went in Second Appeal before the High Court, at this stage also, no cross objections were filed. Before the High Court it was not disputed that the land was on old grant terms. The High Court has so recorded in its Judgment. It is settled law that one has to proceed on basis of what has been recorded by the Court. If any party feels aggrieved of what has been recorded by the Courts a clarification has to be sought from that same Court. In this case the clarification was sought, by way of Review Petition, to which as stated above, fresh documents were purported to be attached for the first time. The High Court has rejected the Review Petition. The High Court has thus confirmed that at the time the Second Appeal was argued it was not disputed that the land was on old grant terms. This Court has to go by what has been recorded in the Judgment. What is recorded in the Judgment is supported by the conduct of the parties inasmuch as no evidence was led to dispute the fact, no documents were tendered or marked as Exhibits and no submissions were made on this aspect. That it was not disputed t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sition should be in the connotation of the acquisition or requisition of the property for public purpose. Deprivation specifically referable to acquisition or requisition and not for any and every kind of deprivation. In Dwarka Das Srinivas of Bombay v. Sholapur Spinning and Weaving Co. Ltd., [1954] SCR 674, Mahajan, J., as he then was, similarly held that the word 'deprived' in clause (1) of Art. 31 and acquisition and taking possession in clause (2) have the same meaning delimiting the field of eminent domain, namely, compulsory acquisition of the property and given protection to private owners against the State action. S.R. Das, J. reiterated his view laid in Subodh Gupal's case. Vivian Bose, J. held that the word 'taken possession of or 'acquired' in Art. 31(2) have to be read along with the word 'deprived' in clause (1). Taking possession or acquisition amounts to deprivation within the meaning of clause (1). No hard and fast rule can be laid down. Each case must depend on its own facts. The word "law" used in Art. 300A must be an Act of Parliament or of State Legislature, a rule or statutory order having force of law. The deprivation of the pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dment) and State Constitutions. The Constitution gives the power to take for public purpose and prohibits the exercise of the power of eminent domain without just compensation to the owners of the property which is taken. The process of exercising the power of eminent domain is commonly referred to as 'condemnation' or 'expropriation'. 36. In Bisambhar Dayal Chandra Mohan v. State of U.P., this Court had held that the State Govt. cannot while taking recourse to the executive power of the State under Art. 162, deprive a person of his property. Such power can be exercised, only by authority of law and not by a mere executive fiat or order. It is, therefore, necessarily subject to Art. 300A. Eminent domain, therefore, is a right inherent in every sovereign State to expropriate private property for public purpose without its owner's consent which inheres in Art. 300A and it would be exercised by the authority of law and not by executive fiat or order. (v) Union of India and others vs. Harish Chand Anand (Dead) Through Lrs., reported in (2010) 15 SCC 591: 12. We have carefully considered the contention. We are not persuaded to accept this contention raised by t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng the policy of the Central Government to go ahead with the project in coordination with the State, CMRL being the requisitioning body, resumption of the subject land is a sine qua non and any delay in handing over possession of the land would not only cause monetary loss but lead to the stalling of the project and, therefore, the land is required for a public purpose and there is every need for handing over the land at the earliest, in order to facilitate the project. It is his further contention that public purpose will prevail over the individual's interest and the appellants have exhausted all the remedies and the matter has been remanded by the Supreme Court only for a limited purpose to give the appellants an opportunity, which has been followed and any delay in completing the project would result in heavy financial implications and, as such, CMRL, being the requisitioning body, its interests should be protected. The learned Senior Counsel has relied on the following rulings: (i) Gaya Prasad vs. Secretary of State, reported in AIR 1939 Allahabad 263: ...No limit of time applies to Government in its resumption of a grant. In the present case, the suit has been brought....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ld 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 over" which would be bad under the provisions of the Transfer of Property Act, such as conditions in restraint of alienations or enjoyment repugnant to the nature of the estate, limitations offending the rule against perpetuities and the like. But no question arises here as to the validity of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f his own in the property. On the other hand, ss. 16 and 17 of the Land Acquisition Act. (Act I of 1894), provide that the property so acquired, upon the happening of certain events, shall "vest absolutely in the Government free from all encumbrances". In the cases contemplated by ss. 16 and 17 the property acquired becomes. the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word "vest" has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly ss. 45 to 49 and 54 and 54A when they speak 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. 20. The question o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. 437 now). The provision is a penal provision' and immediately a question arises whether the State as such, apart from its individual officers as natural persons, is liable to prosecution under the criminal law or has to be exempted from the operation of the provisions of criminal statutes by necessary implication. A criminal proceeding generally ends with punishment which may be imprisonment, or fine, or both. Now it does not require any elaborate reason to realise that the State as such cannot be sentenced to imprisonment because there is no way of keeping it in prison; therefore, by necessary implication, the State is exempt from all penal statutes and provisions providing for sentences of imprisonment or death. Then come those penal provisions which impose fines, like the present case, and the question is whether in such a case also the State must be deemed by necessary implication to be exempt from the penal provision. Generally speaking fines when inflicted by courts are realised by the State and go to the coffers of the State. In effect, therefore if the State as such is to be prosecuted under a penal statute imposing fine the result is that the Court will sentence the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t. 226. It was urged before the High Court that S. 9 of the Specific Relief Act which affords a speedy and summary remedy to a person in possession who has been dispossessed is not applicable where dispossession of a person in possession is caused by the Central Government or any State Government, for that is the effect of the clear provision in that behalf under S. 9 itself. The High Court, however, was inclined to take the view that the right to recover possession vesting in a person who had been in possession prior to such dispossession which is implicit in S. 9 can be enforced under Art. 226 by a party even against the Central Government or the State Government, and in that sense, the jurisdiction of the High Court under Art. 226 was not limited in the manner in which the jurisdiction of civil courts is limited under S. 9. The High Court then expressed itself somewhat strongly against the intention of the appellant to recover possession from the ex-Zamindars merely be resuming the grants without taking recourse to a court of law and so, it held that the ex-Zamindars who had moved it under Art. 226 were entitled to an appropriate writ under the said Article. The appellant then m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t protecting that right. This argument is clearly fallacious. Mere possession of the property for however long a period it may be, will not clothe the possessor with any legal right if it is shown that the possession is under a grant from the State which is resumable. Such long possession may give him a legal right to protect his possession against third parties, but as between the State and the grantee, possession of the grantee under a resumable grant cannot be said to confer any right on the grantee which would justify a claim for a writ under Article 226 where the grant has been resumed. In dealing with this argument, we have assumed without deciding that though a suit under Section 9 of the Specific Relief Act would have been incompetent against the appellant, a similar relief can be claimed by the respondents against the appellant under Article 226. Even on that assumption, no right can be claimed by the respondents merely on the ground of their possession, unless their right to remain in possession is established against the appellant, and this can be done if the grant is held to be not resumable. (vi) State of Andhra vs. Gathala Abhishekam and others, reported in AIR 1964....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is not with reference to that grant, bound by any of the sections of either the Tenancy Act or the Transfer of Property Act or the Contract Act, or any other law for the time being in force. It therefore follows that any grant made has to be construed in accordance with the tenor of the grant, and the grant will certainly be regulated in accordance with such tenor. This is the conclusion which is 'supported by the following decisions. (a) Ullattuthodi Choyi v. Secy, of State for India, 14 Mad LW 386 at p. 387: (AIR 1921 Mad 409). (b) Kallingal Moosa Kutti v. Secy, of State, ILR 43 Mad 65 at p. 68 : (AIR 1920 Mad 413 at p. 414). (c) Janendra Nath v. Jadu Nath, AIR 1938 CaJ 211 at p. 214; (d) Raja Rajinder Chand v. Sukhi,. (e) Namdeo Lokman v. Narmadabai,. (f) Haji Fasihuddin v. Mohd. Habib,. Applying these principles to the facts of the present case we experience no difficulty in reaching the conclusion that the tenure of the grant clearly indicates that the land was assigned on condition that the plaintiffs should pay the land revenue on the prescribed dates. When they have failed to pay, it follows that the Government has the right to resume and re-enter and take....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 3 of the Government taken in deciding whether the State can claim immunity and exemption from the provisions of the Madras Cultivating Tenant Protection Act in respect of agricultural lands of the Government by virtue of Section 3 of the Government Grants agricultural Act. In the case before the learned Judge, a lessee of agriculture land government Grants sought to rely upon the provisions of the Madras Cultivating Act land from Govern-section Act and the State met by putting forward a claim to immunity and exemption from the provisions of that Act, by reason of the Government Grants Act. The learned Judge held, firstly, that the plaintiff's in the suit would be a cultivating tenant within the meaning of the Madras Cultivating tenant the Act should apply, he could not be evicted from his holding. The State was undoubtedly the landlord and but for the claim to immunity by reason of the Government Grants Act, Section 3 of the Madras Cultivating Tenants Protection act would afford protection to the tenant against eviction. The learned Judge examined the provisions of the Government Grants Act. He referred to the decisions already cited by us earlier in this judgment He cited the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ason of the observations of the Privy Council and the Supreme Court. We have already pointed out that under the law as it stands at present, the State is bound by any legislation, unless it is expressly or by necessary implication excluded from the operation of that statutes in relation to certain matters covered by that piece of legislation. In effect, the view of Natesan, J., would appear to be that the two decision, that of the Privy Council and of the Supreme Court, have virtually destroyed the basis of the Government Grants Act, and that in so far as transactions dealt with by that Act are concerned, the Government by reason of the provisions contained in that Act cannot claim immunity from the operation of any other statute. We are unable to agree in the view taken by our learned brother that the earlier decisions of this Court in Murugesa Gramani v. Province of Madras (1946) 2 M.L.J. 171, Ullattuthedi Chovi v. Secretary of State for India (1921) 41 M.L.J. 494 and Kallingal Moosa Kutty v. The Secretary of Stale for India (1920) I.L.R. 43 Mad. 65: 37 M.L.J. 332, may not be good law after the decisions of the Judicial Committee and the Supreme Court cited above. Neither express....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Sabha's right to the estate is tell-tale. True, this cut-back on the amplitude of the vesting is not an incident of the estate created but is provided for by the Act itself. Even so, we have to envision, in terms of realty law, what are the nature and incidents of the interest vested in the Sabha--full ownership divestible under no circumstances or partial estate with the paramount interest still surviving in praesenti in the State ? (ix) State of U.P. and another vs. Synthetics and Chemicals Ltd. and another, reported in (1991) 4 SCC 139: 38. The dispute is about levy of purchase tax on industrial alcohol. The High Court held that the State legislature was competent to enact a law imposing purchase tax on it in exercise of power under Entry 54 of List II. But it struck down the levy as it would disturb price structure regulated by Central Government. It was held that control of alcohol industry having been taken over by the Parliament, for purpose of regulation and development the State stood denuded of its taxing power under Entry 54 of List II to the extent the field of price fixation was covered by the price control order issued by the Government. And the purchase pri....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings. In Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of India this Court cautioned: It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment.... (xi) Committee of Management of Pachaiyappa's Trust vs. Official Trustee of Madras and another, reported in (1994) 1 SCC 475: 31. The learned Single Judge was also not right in holding that the appellant has no locus standi in the matter. Apart from being a tenant on the ground floor of the building adjacent to the vacant plot of land the appellant trust, is also the residuary legatee under the will and has a beneficial interest in the trust property sought to be leased. The appellant was, therefore, entitled to raise objections regarding grant of lease in favour of Respondent 2 on the ground that the said lease was ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... person who wanted, a person in lawful possession to have his removed from possession, according to proper from and to prevent them from going with a high band and eject such person. Undoubtedly, the true owner is entitled to retain possession even though he had obtain it by force or by other unlawful means but that would not be a ground to permit the owner to take law into his own hands and eject the person in juridical possession or settled possession without recourse to law. 9. Thus, it could be seen that even after determination of the licence under the Government Grants Act, the Government is entitled resume possession but resumption of possession does not mean unilaterally taking the possession without recourse to law. The Eviction Act contemplates such a procedure. "Premises" defined under Section 3(d) of the Act means and land or any building or a part of a building or but and enclosed etc. Section 4 prescribes procedure of issuance of a notice of show cause before eviction giving an opportunity and thereafter taking action under Section 5 of the Act. Unfortunately, on the facts of the case on hand, the respondent, has not adopted the procedure prescribed under Sections 4....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 10 or 15 days to vacate the premises and to deliver vacant and peaceful possession; thereafter, the Government would be free to resume possession. Since possession was already taken, through we are not approving of the manner in which the same was taken, we do not think that in this matter notice afresh need be given to the appellant. It may be open to the appellant to avail of any remedy available in law. (xiv) Hajee S.V.M. Mohamed Jamaludeen Bros. & Co. vs. Government of Tamil Nadu, reported in (1997) 3 SCC 466: 7. When a Letters Patent Appeal was preferred by the Government a division bench of the Madras High Court set aside the side decree and dismissed the suit holding that clause 7 of the agreement is valid and enforceable in view of the provisions in the grants act and hence appellant is not entitled to claim damages for the action resorted to by a government. 8. If clause 7 of the agreement is valid it is binding on both the parties to the contract and the corollary is that government had the power to revoke it unilaterally and hence termination of the contract is not liable to be questioned by the other party. As the division bench upheld the validity of clause 7 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....). The position continued to be so even after the Constitution came into force [State of U.P. vs. Zahoor Ahmad, 1974(1) SCR 344]. 12. An attempt was made to show that the transaction evidenced by the agreement was not a grant but a lease of land. Though it is not now open to the appellant to raise such contention (in view of the clear finding of the learned single judge that it was not a lease but only a licence coupled with interest, which finding was not challenged by the appellant before the division bench) assuming the it was lease of land still appellant cannot succeed because lease made by the government is also covered by the protection envisaged in Section 2 and 3 of the Act. (xv) Suganthi Suresh Kumar vs. Jagdeeshan, reported in (2002) 2 SCC 420: 11. When this Court pronounced in Hari Singh v. Sukhbir Singh, (supra) that a court may enforce an order to pay compensation "by imposing a sentence in default" it is open to all courts in India to follow the said course. The said legal position would continue to hold good until it is overruled by larger Bench of this court. Hence learned single judge of High Court of Kerala has committed an impropriety by expressing that th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....made by (i) any person interested (ii) who has not accepted the award (iii) making application in writing, to the Collector, requiring a reference by the Collector to the Court (iv) for determination of any one of the four disputes (specified in the provision), and (v) stating the grounds on which objection to the award is taken. For reference under Section 30 no application in writing is required. The prayer may be made orally or in writing or the reference may be made suo motu by the Collector without any one having invited the attention of the Collector for making the reference. By reference to the disputes referable Under Section 18(1) there are four types of disputes which can be referred to Civil Court for determination. They are the disputes: (i) as to the measurement of the land, (ii) as to the amount of the compensation, (iii) as to the persons to whom the compensation is payable, or (d) as to the apportionment of the compensation among the persons interested. Under Section 30 the only disputes which are referable are: (i) any dispute as to the apportionment of the amount of compensation or any part thereof, or (ii) a dispute as to the persons to whom the amount of com....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en he made his award would include within its meaning a person who shall be deemed to be present or represented before the Collector at the time when the award is made. No one can extend the period of limitation by taking advantage of his own wrong. Though no limitation is provided for making a reference under Section 30 of the Act, needless to say, where no period of limitation for exercise of any statutory power is prescribed the power can nevertheless be exercised only within a reasonable period; what is a reasonable period in a given case shall depend on the facts and circumstances of each case. (xviii) Federation of Railway Officers Association and others vs. Union of India, reported in (2003) 4 SCC 289: 18. Even if we assume that there is force in the material placed by the petitioners that by forming new railway zones efficiency in the railway administration would not enhance, the reasons given by the Government and material placed by them in support of forming new railway zones is no less or even more forceful. Further, when technical questions arise and experts in the field have expressed various views and all those aspects have been taken into consideration by the Gov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. 20. The Learned Counsel for the Farm contended that the land subjected to ceiling was held by the Company as a Govt. Grantee pursuant to the letter of the Deputy Secretary to the Govt. of U.P. dated 26.1.1950 referred above. The tenure holder of the land, therefore, within the meaning of the Ceiling Act was the Company i.e. the Govt. Grantee and all proceedings initiated by notice to the Farm, submission of statement and declaration by the Farm culminating in the orders passed by the prescribed authority and the appellate authority were void and infructuous because the Govt. Grantee, as holder of the land, was not at all a party before the ceiling authority. (xx) Bajaj Hindustan Limited vs. Sir Shadi Lal Enterprises Limited and another, reported in (2011) 1 SCC 640: The lands were released to the ruler for its development and for making it cultivable within the prescribed period. The terms of the Govt. Gran....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., prior to execution of the lease deed in favour of HUDCO, was sought to be taxed and that no building had been constructed by HUDCO. HUDCOs own case was that interest in land could pass only on execution of lease and construction thereon under section 120(2) of the MCD Act. MCD had invoked Section 120(1) DMC Act to fasten liability on HUDCO and not under Section 120(2) DMC Act after construction was made by HUDCO and lease deed executed by the government. In that case, this Court has held that vacant land belonging to the Government was not taxable by virtue of section 119 DMC Act and Article 285 of the Constitution of India. However, in our considered view, the case at hand is totally different. The HUDCO judgment dealt with the case where vacant land belonging to the lessor/Government and in regard whereto no lease deed had been executed and no construction had been made by the lessee/HUDCO. The land belonging to the central government was sought to be taxed under Section 120(1) of the DMC Act which fastens liability on the lessor. Since land belonged to UOI the same was exempted from payment of tax until the lease deed was executed and construction made thereon by HUDCO-under S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....all thereupon vest in the receiver." The property vests in the receiver for the purpose of administering the estate of the insolvent for the payment of his debts after realizing his assets. The property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. On the other hand, ss. 16 and 17 of the Land Acquisition Act. (Act I of 1894), provide that the property so acquired, upon the happening of certain events, shall "vest absolutely in the Government free from all encumbrances". In the cases contemplated by ss. 16 and 17 the property acquired becomes. the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word "vest" has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have bee....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) the plans of the building shall be approved by Government and (iii) the land shall be liable for resumption, without compensation, if it ceases to be employed for the purpose for which it is granted or is used for any other purposes, without the permission of Government. 21. Following the allegations of misappropriation of funds and mismanagement of the choultry, this Court passed a scheme decree on 18.08.1970 in C.S. No. 90 of 1963, by removing the then existing hereditary Trustee and appointing the Administrator General and Official Trustee (AGOT) for the management of the property. Pursuant thereto, the High Power Committee for Chennai Metro Rail Project, chaired by the Chief Secretary, in the meeting held on 09.12.2009, identified the lands assigned to Sir Ramasamy Mudaliar Choultry, namely, the subject lands, and directed the Chennai Metro Rail Limited and the Revenue Department to take appropriate action for allocation of the lands well before the construction of Metro Station is taken up. Thereafter, the District Collector, Chennai, and the Principal Secretary and Commissioner of Land Administration sent reports to Government, on non-functioning of choultry and the commer....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Division Bench, dated 12.07.2013, the aggrieved parties in respect of the lands in T.S. No. 41 have filed S.L.P. Nos. 23081 to 23084 of 2013, which were numbered as Civil Appeal Nos. 6065 to 6068 of 2013, before the Supreme Court, which, by its order, dated 25.07.2013, directed the State Government to issue notices to all the lease holders concerned on or before 05.08.2013. The appellants therein were permitted to respond to the said notices on or before 16.08.2013. The determination thereon, one way or the other, was directed to be rendered by the appropriate authority within one week thereafter. In case any of the appellants were to be adversely affected, a well reasoned speaking order was directed to be passed, taking into consideration all the issues canvassed in response to the show cause notices. Likewise, the appellants were given liberty to obtain the final orders passed in the matter on or after 30.09.2013 from the office of the concerned District Collector, Chennai. 24. As per the directions of the Supreme Court of India, notices were issued to AGOT, Co-Trustee and 44 lessees/tenants/occupants by the District Collector, Chennai, on 01.08.2013 and the AGOT, Co-Trustee an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....13: Section 10: 10. Power of High Court to appoint Official Trustee to be Trustee of property. (1) If any property is subject to a Trust other than a Trust which the Official Trustee is prohibited from accepting under the provisions of this Act, and there is no Trustee within the local limits of the ordinary or extraordinary original civil jurisdiction of the High Court willing or capable to act in the Trust, the High Court may on application make an order or the appointment of the Official Trustee by that name with his consent to be the Trustee of such property. (2) Upon such order such property shall vest in the Official Trustee and shall be held by him upon the same Trusts as the same was held previously to such order, and the same Trusts as the same was held previously to such order, and the previous Trustee or Trustees (if any) shall be exempt from the liability as Trustees of such property save in respect of acts done before the date of such order. (3) Nothing in this section shall, be deemed to affect the provisions of the Indian Trust Act, 1882 (2 of 1882). Section 25: 25. Power of High Court to make orders in respect of property vested in Official Trustee. The ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... domain which applies when a person is deprived of his property postulates that the purpose must be primarily public and not primarily of private interest and merely incidentally beneficial to the public. 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. 29. Requirement of public purpose is invariably the rule for depriving a person of his property and any violation of it is amenable to judicial review. 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 depends upon the terms of the statute and the legislative policy. Requirement of public purpose, for deprivation of a person of his property under Article 300-A, is a pre-condition, but no compensation or nil compensation ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....this matter requires examination, this Court is not the proper forum to examine the position, in view of the questions raised and considered by the Supreme Court and even for a new proposition of law. 33. It is for the Apex Court to look into the same as to the principle that 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 or not whether any direction could properly be made compelling the concerned authority. It may not be proper for this Court to examine this position, as the ratio of that case in a given circumstance could be the law laid down under Article 141 of the Constitution. Therefore, it is for the parties to raise the same before the appropriate forum, as the ratio laid down under Article 141 of the Constitution has binding effect and will be the force of law. 34. A Constitution Bench of the Supreme Court, in a recent decision in the case of K.T. Plantation Private Limited v. State of Karnataka, (2011) 9 SCC 1, while dealing with the power of Government to withdraw exemption granted in c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and acting in their sovereign capacity for setting up the structure of the Government. 39. Constitution is a set of laws and rules setting up machinery of the Government of a State which defines and determines the relation between the different institutions and areas of Government, the executive, legislature and the judiciary, the central, the State and the local government. A Constitution is a source of jurisprudential fountain head from which other laws must flow and it must grow with the growth of the nation with the philosophical and cultural advancement of the people who gave birth to it. The Constitution of India is one such document which is the longest of its kind representing the political, economic and social ideals and aspirations of the vast majority of Indian people. The ideals intended to be achieved by the provisions of the Constitution were preceded by immense sacrifices and the Constitution could not be a source for the destruction of these ideals. It is a constituted document keeping with modern constitutional practice, and fundamental to the governance of the country. The people of India have provided a constitutional polity consisting of certain primary organs,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....orship and equality of status and of opportunity", which means, an independent sovereign State may well become a people's Government. Similarly, the dignity of the individual in the Preamble to the Constitution emphases the positive aspect, which signifies the word of moral and spiritual import. It implied an obligation on the part of the Union to respect the personality of the citizen and to create conditions in which every citizen would be left free to find individual self-fulfilment. 43. No reading of any Constitution can be complete without reading it from the beginning to the end. While the end may expand, or alter, the point of commencement can never change. It is the Preamble wherefrom the Constitution commences. Hence, the significance of the Preamble. 44. It is no exaggeration to say that the Preamble to the Constitution of India is its spirit and backbone. The Preamble pervades through and inspires all the provisions of the Constitution. It is also the quintessence of the Constitution. Ever since the day it was adopted by the Constituent Assembly, it has enabled the Constitution to stand erect neither bending nor breaking. 45. The significance of the Preamble is th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Ordinances in order to meet the situation, as Article 123(1) says "If, at any time, except when both Houses of Parliament are in Session, President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require." When proclamation of emergency has been declared by the President due to failure of Constitutional machinery, the President has been given legislative power under Article 357 of our Constitution to make any law in order to meet the situations. A power has also been conferred on the President of India under Articles 372 and 372-A to adopt any law in the country by making such adaptations and modifications whether by way of repeal or amendment as may be necessary or expedient and to provide that the law so adapted or modified shall have effect subject to adaptation and modifications so made and the adaptation and modifications shall not be questioned. 52. The President of India also exercises 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 th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the legislature? Does it not imply that unless it can be gathered from other provisions of the Constitution, other bodies, executive or judicial, are not intended to discharge legislative functions ? 55.2. To the same effect, another case is Rai Sahib Ram Jawaya v. State of Punjab, AIR 1955 SC 549, in which the then Hon'ble Chief Justice B.K. Mukherjea observed: The Indian Constitution has not indeed recognised the doctrine of separation of powers in the absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. 55.3. In Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538, the then Hon'ble Chief Justice S.R. Das opined that in the absence of specific provision for separation of powers in our Constitution, 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.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntial legislative function consists in the determination of the choice of the legislative policy and of formally enacting that policy into a binding rule of conduct. Evaluation of the principle: 56. The value of the principle "Separation of Powers" lies in the fact that it seeks to preserve the human liberty by avoiding the concentration of powers in one person or body of persons. The different organs of Government for the sake of liberty should be prevented from encroaching on another province. 57. History has proved the fact that if there is a complete separation of powers, the Government cannot run smoothly and effectively. Smooth running of Government is possible only by co-operation and mutual adjustment of all the three organs of the Government. The aim behind the principle is to protect the people against capricious, tyrannical and whimsical powers of the State. 58. Virtually, absolute separation 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 it....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Constitution. Landmark pronouncements of the Supreme Court in Kesavananda Bharati, AIR 1973 SC 1461, Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, and Minerva Mills, 1980(3) SCC 625, bear testimony to this truism. Any amendment of the Constitution is open to judicial review and liable to be interfered with by the Court on the ground that it affects one or the other of the basic features of the Constitution. 63. The Constitution of India is a constitutive document, in keeping with modern constitutional practice, and fundamental to the governance of the country. The people of India have provided a constitutional polity consisting of certain primary organs, institutions and functionaries to exercise the powers provided in the Constitution. No other Constitution combines under its wings such diverse people, numbering now more than one billion, with different languages and religions and 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 an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. No. 253 dated 17.01.1899, whereby, the conditions were incorporated in the following words: 1. that the land shall revert to Government when it ceased to be used for the purpose for which it is granted; and 2. that should be property be at any time resumed by Government, the compensation payable, therefore, shall in no case exceed the cost or the then present value whichever shall be less of any building erected or other works executed on the land. 68. Subsequently, the said lands were subjected to civil jurisdiction and the competent Civil Court, namely, the High Court of Judicature at Madras, framed a Scheme Decree in C.S. No. 90 of 1963. Accordingly, properties held by Sir Ramaswami Mudaliar's Choultry were vested with the Administrator General and Official Trustee (hereinafter referred to as AG & OT) of Tamil Nadu from 18.08.1970. 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 w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er the said property. The lands in question undoubtedly are lands belonging to the State of Tamil Nadu and the same were originally granted in favour of Sir Ramaswamy Mudaliar and an order of grant was also passed in this regard with certain conditions. In the meanwhile, such persons ultimately approached the competent Court of Civil jurisdiction i.e., High Court of Madras, wherein a Scheme was framed and that decree is in force as on date. It is equally important to note that after framing of the said Scheme, the subject property has been entrusted to a Trustee under the control of judiciary, namely, AG & OT. Therefore, it is more important that in a public project, for immediate execution of the same, the law of the land has to be followed in vesting and divesting the property from the authorities concerned before resumption of the land. 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n cannot be frustrated by inaction and omissions on the part of the officers. Imperatively, it must follow that the Central Government and all State Governments must issue appropriate directions to ensure that there is no harassment, hardship or inequality caused to the owners/persons interested in the lands to be resumed by the State in exercise of its power of eminent domain. 75. Our Constitution, subject to certain exceptions, has guaranteed the fullest protection to property. It has not only provided that no person can be deprived of property by the executive without legislative sanction but it has further provided that even the legislature cannot deprive a person of his property unless there is a public purpose and then only on payment of compensation. Article 31, in this regard, provides as follows: 31. (1) No person 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ne may lawfully exercise over particular things or subjects is called property. The exclusive right of possessing, enjoying, and disposing of a thing is property in legal parameters. Therefore, the word property connotes everything which is subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate or status. Property, therefore, within the constitutional protection, denotes group of rights inhering citizen's relation to physical thing, as right to possess, use and dispose of it in accordance with law. 77. Article 31, which was deleted by the Constitution 44th Amendment Act, 1978 with effect from 20.06.1979, provided 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 receiv....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... It would be by exercise of the police power of the State. In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. 80. What needs to be emphasised is, that, although in exercise of the power of eminent domain the State can acquire the property for a public purpose, it must be remembered that compulsory acquisition of the property which is under occupation of an individual is a serious matter and has grave repercussions on his constitutional right of not being deprived of his property without the sanction of law viz., 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, thro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Rule of Law. 83. In the given situation, in the instant case, the action of the Executive, without resorting to the Rule of Law in resumption of the land in question, being controlled and maintained by the judiciary under the Civil jurisdiction, cannot be said to be interpreted in the manner as contemplated under Section 3 of the Government Grants Act, 1895, when notwithstanding any law for the time being in force, the State has got absolute power to resume its own property, which has been entrusted to the other organ of the democracy, namely, Judiciary. The Executive should act only under the authority of law by invoking appropriate jurisdiction, when the subject property is already under the control of the judiciary. Such an act of the 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 othe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ely, against the Division Bench judgment, dated 12.07.2013, has dealt with the matter as regards T.S. No. 43/2 as well as T.S. No. 41 and, by a judgment, dated 21.02.2014, held that the project details and the plan annexed with it disclose that the lands situated in Survey No. 43/2 as well as Survey No. 41 were all part of the projects for putting up various other ancillary units such as mechanical plant rooms, electrical plant rooms, building services, drop-off and pick-up facilities, airport check-in facilities, ventilation shafts, subway, feeder bus stand, multi-model facilities, pick-up and drop-off bay, MTC Bus bay, fireman staircase, entry and exit points and that if the taking over of the lands by the Chennai Metro is not 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 buil....
X X X X Extracts X X X X
X X X X Extracts X X X X
....etails pertaining to the proposed underground Metro Station and the other supporting provisions to be made such as mechanical plant rooms, electrical plant rooms, bus bay and other developments to be carried out spread over a vast extent of land both on the Northern side of the Poonamallee High Road as well as the lands situated on the Southern side of the said Road with which we are now concerned. Therefore, in the light of the above details placed before the Court which according to learned Additional Solicitor General was made available before the Division Bench also, we have no reason to reject the said submission in order to sustain the conclusion of the Division Bench. In other words, the conclusion of the Division Bench 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 pu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t there was no necessity for a remand. Therefore, since we have also decided the whole controversy on merits there is no need for a remand. 20. Therefore, once we are convinced that the entitlement of the Appellant to hold the lands belonging to the State falling under Survey Nos. 43/2 as well as 41 which the Appellant is able to take possession of from the State Government without payment of any compensation, the only other question to be examined is as to whether the lease granted in favour of the First Respondent by the AG & OT based on the directions of the High Court can have any implication in preventing the Appellant from taking over the lands. As noted earlier, indisputably the lands in Survey No. 43/2 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Original Grantee. Therefore, we do not find any justification in the Division Bench in having interfered with the impugned GO Ms. No. 168 dated 21.05.2012 and the consequential orders of the Tehsildar dated 21.06.2012 and that of the AG & OT dated 25.06.2012 directing the First Respondent to handover possession of the lands. 23. Therefore, while the impugned GO and the consequential orders of the Tehsildar and AG & OT can be sustained, having regard to the condition contained in the initial GO Ms. Nos. 763 and 253 dated 09.12.1898 and 17.01.1899 since based on valid orders of the High Court and the AG & OT the First Respondent developed its Hotel business in the lands in question, while 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....c structure of the Constitution, which means the Government should follow the proper procedure, which, in this case, is already in currency but not followed, while revoking the grants. 91. Moreso, Article 300-A would be equally violated if the provisions of law authorising deprivation of property have not been complied with. While enacting Article 300-A, the Parliament has only borrowed Article 31(1), the Rule of law doctrine and not Article 31(2), which had embodied the doctrine of "Eminent Domain". Article 300-A enables the State to put restrictions on the right to property by law. That law has to be reasonable. It must comply with other provisions of the Constitution. 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 ....