Requisition & Acquisition of land - Notification to resume Govt. lands given on Grant and further on lease - Either the beneficiary or the Tenants can not resist the Govt. from resumption for constructing Chennai Metro Project - they are only entitled for compensation for the constructions they have raised in those lands - Apex court set aside the order of High court and allowed the appeal and directed to pay compensation to the Tenants who raised buildings =
We, therefore, hold that the State Government as the owner of the land
and having regard to the right retained by it while making the grant
in the years 1898 and 1899 and in the larger public interest of
setting up of the Chennai Metro Project the lands were required by it,
the same cannot be questioned by the Original Grantee or by the
lessees whose holding was subordinate in character to the 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.
Therefore, while allowing the Appeals of the State Government as well
as the Chennai Metro and while setting aside the Judgment of the
Division Bench, Writ Appeal Nos.68, 69, 89 and 90 of 2013 are allowed.
We, however, direct the Appellants to value the buildings belonging to
the First Respondent standing in Survey No.43/2 and determine the
compensation and pay the same to the First Respondent. The said
exercise of valuation and payment of compensation shall be effected
within three months from this date.
25. In the light of our above orders, the First Respondent is directed to
surrender possession of the lands in Survey No.43/2 in an extent of
5644 sq. ft. through the AG & OT within four weeks from the date of
receipt of copy of this judgment. With the above directions, these
appeals are allowed.
2014(Feb.Part) judis.nic.in/supremecourt/filename=41243
A.K. PATNAIK, FAKKIR MOHAMED IBRAHIM KALIFULLA
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2572-2573 OF 2014
(@ SLP (C) NOS.26020-26021 OF 2013)
The M.D., Chennai Metro Rail Ltd. …Appellant
VERSUS
N. Ismail & Ors. …Respondents
With
CIVIL APPEAL NOS. 2575-2578 OF 2014
(@ SLP (C) NOS.26199-26202 OF 2013)
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. I.A. Nos.1-2 & I.A. Nos.1-4, applications for impleadment, filed in
Special Leave Petition (C) Nos.26020-26021 of 2013 and Special Leave
Petition (C) Nos.26199-26202 of 2013, are allowed. Registry to carry
out necessary amendment.
2. Leave granted.
3. These appeals have been filed by the State of Tamil Nadu represented
by the Managing Director of Chennai Metro Rail Ltd. and the Principal
Secretary to Government Revenue LD-1(1) Department.
The issue
concerned in these appeals relates to an extent of 5 Grounds and 275
sq.ft. of land in T.S. No.43/2 in Chennai District, Fort Tondiarpet
Taluk, Block No.7 of Vepery Village.
The abovesaid land along with
another land in an extent of one Cawni 10 Grounds and 1871 sq.ft. in
T.S. No.41 of the same Vepery Village, Fort Tondiarpet Taluk, Chennai
District was granted by the Government of Tamil Nadu to one Sir
Ramaswamy Mudaliar to build a Choultry for the use of persons who come
by rail from different parts of the presidency and who have no homes
or friends in Madras.
The Government while assigning the above lands
to Sir Ramaswamy Mudaliar imposed certain conditions to the effect
that the Choultry should be available for the free use of railway
travelers, that the buildings constructed should be approved by the
Government and more importantly, “that the land shall be liable to
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 the Government”.
4. The said lands were granted and assigned in favour of Sir Ramaswamy
Mudaliar by GO Ms. Nos.763 and 253 dated 09.12.1898 and 17.01.1899
respectively whereas the conditions were incorporated in the following
words
“(1) that the land shall revert to Government when it ceases to
be used for the purpose for which it is granted and (2) that should
the 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”.
5. Subsequently, under a Scheme Decree framed by the High Court of
Judicature at Madras in C.S. No.90 of 1963 all the above mentioned
properties held by Sir Ramaswami Mudaliar’s Choultry were vested with
the Administrator General and Official Trustee (hereinafter referred
to as “the AG & OT) of Tamil Nadu on 18.08.1970. From then onwards the
management of the Trust and the properties attached with 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 and T.S. No.43/2 to
various tenants and was collecting the rent. As far as T.S. No.43/2
comprised in an extent of 5644 sq.ft. was concerned, the same was
leased out to the first respondent herein under the lease deed dated
22.12.1972. According to the AG & OT, the First Respondent is in
arrears and as on 31.12.2012, the arrears payable by the First
Respondent works out to a sum of Rs.94,84,630/- which has been
computed and determined by the High Court of Madras. It is also
stated that the First Respondent has preferred Special Leave
Petition(C) No.11-12 of 2010 against the said determination and claim
which is pending in this Hon’ble Court.
6. According to the First Respondent, pursuant to the lease granted in
his favour, which was registered as document 105 of 1974 in the Office
of Sub-Registrar, West Madras, he constructed a Hotel and started the
business in the year 1987. According to him, subsequently, an adjacent
piece of land measuring 4141 sq. ft was granted on lease for a period
of 30 years to one Smt. Vatsala again based on the Order of the High
Court of Madras, which was also supported by a registered Lease Deed
dated 29.04.1982 bearing Document No.1492/1984 registered in the
office of the Registrar, Madras (North).
The said Smt. Vatsala also
stated to have transferred her lease hold right in respect of the said
extent to the First Respondent which was also stated to have been
approved by the Official Trustee in the proceeding dated 05.04.1989 in
R.O.C. No.2390 of 1989/OT. The First Respondent claimed to have put up
two pucca structures and running two Star Hotels known as ‘Hotel
Central Tower’ and ‘Hotel Howrah’.
The First Respondent also claimed
to have got the approval of the Municipality, State Government and
other authorities and that the buildings were duly assessed for
property tax and other statutory dues.
By Order dated 10.12.2004 in
Application No.915/2003, the lease in favour of the First Respondent
was stated to have been extended for a further period of 25 years by
enhancing the rent payable by him.
The First Respondent also relied
upon an Order of the Division Bench of the High Court dated 20.08.2009
in support of the extension of the lease passed in O.S.A. No.298 of
2004 and connected batch cases.
According to the First Respondent
because of his old age and other physical ailments he entered into a
partnership arrangement with the applicant in I.A. Nos.1 and 2 of 2014
in Special Leave Petition (C) No.26020-21 of 2013 under the
partnership deed dated 28.03.2013.
7. Be that as it may, having regard to the unprecedented growth of
population in general, as well as with particular reference to the
Metropolitan City of Chennai, there was an imminent need for providing
better transport facilities for the commuters and office goers, as
well as business people, which persuaded the State to expand the rail
transport facility in the City of Chennai. With that avowed object,
the appellant in Special Leave Petition (C) No.26020-21 of 2013 came
into being and the said Chennai Metro Rail Limited planned a project
called ‘Chennai Metro Rail Project’ which envisaged construction of
two corridors under Phase-1. Corridor 1 starts from Washermenpet and
ends at Airport for a length of 23.1 kms. and Corridor 2 starts from
Chennai Central and ends at St. Thomas Mount Station for a length of
22 kms. As per the project, the portions of Corridor 1 with a length
of 14.3 kms. between Washermenpet to Saidapet and in Corridor - 2 with
a length of 9.7 kms. from Chennai Central to Anna Nagar would be
underground corridors and the remaining in an elevated position.
8. The Chennai Metro Rail Limited is stated to be a Special Purpose
Vehicle (SPV) formed for the purpose of implementing the ‘Chennai
Metro Rail Project’. The Project is stated to be funded by the
Government of India and the State Government by way of equal equity
contribution in subordinate debt. (Government of India 20%, Government
of Tamil Nadu 20.78% and the balance 59.22% being met from the loan
assistance from Japan International Co-operation agency). The
Government of India is stated to have accorded sanction for the
project as well as for its participation.
9. The lands concerned in these appeals are covered by the project,
namely, Corridor 1, i.e. from Washermenpet to Chennai Airport.
According to the appellant, in Special Leave Petition (C) No.26020-21
of 2013, the project is a time bound project with an objective to ease
out phenomenal growth of traffic congestion in the City of Chennai and
any delay in carrying out the project would affect the plans announced
by the Government of India, as well as, the State Government, the
convenience of the public of Chennai and further will lead to
contractual implications such as extension of time and escalation of
project costs, which in turn would cost the public exchequer several
hundred crores of rupees. According to the Chennai Metro, any further
delay on any account, apart from causing high amount of cost
escalation, would also deprive the citizens of Chennai a safe and
quick means of public transport. It is stated that the Chennai Metro
in its project report has described in detail the various length of
the projects and in the said statement, designed constructions of
underground stations at Washermenpet, Mannadi, High Court, Chennai
Central and Egmore and associated tunnels, the details of the
location, the description, the access date from commencement of the
works with particular reference to the number of days and the vacate
date from commencement of the work with particular reference of number
of days is specified after making meticulous calculations.
10. Mr. Nageswara Rao, learned Additional Solicitor General appearing for
the appellants brought to our notice the work which was to be carried
out in the land concerned in this appeal which has been noted in the
column under locations/drawing reference bearing No.SCC-14 and the
description has been shown as entrance area. As far as access date is
concerned, it is noted as 365 days from commencement of the works and
the date to be vacated after completion of the work from the date of
commencement is noted as 1520 days. According to learned Additional
Solicitor General, for the purpose of starting the work in the land in
question, as per the schedule, the Chennai Metro should have access to
the land within 365 days of the commencement of the project and
complete the work in that land within 1520 days from the date of such
access. It was pointed out that such details have been specified in
the contract agreement and that to ensure that the works are carried
out without any deviation and within the time schedule, the required
plans were also prepared in so far as it related to SCC-14 and was
submitted with the details of lands falling under Survey No.43/2. The
learned Additional Solicitor General also submitted that the said land
were earmarked for erecting a mechanical plant room, electrical plant
room, building services, drop-off and pick-up facilities and Airport
check-in facilities. The plan which were enclosed along with the
Special Leave Petition paper book between pages 164 to 167 disclose
the area falling under Survey No.43/2, the various facilities to be
set up in that land along with the other facilities to be provided in
the lands adjacent to the said Survey No.43/2.
11. It was also the case of the Chennai Metro that since the lands in
Survey No.43/2 belong to the State Government and was imminently
required for the Chennai Metro Project which was out and out in public
interest, the State Government came forward to allot the said lands
after retrieving it from Sir Ramaswamy Mudaliar Choultry through the
AG & OT and by GO Ms. No.168 dated 21.05.2012 passed orders to that
effect. Before issuing the said GO, the procedure to be followed for
transfer of the said lands in favour of the Chennai Metro Pvt. Limited
were also carried out. As the lands belong to the State Government
there was no necessity for any acquisition being involved or any
payment of compensation to be made in favour of anyone except for the
Buildings standing thereon. Since the State Government’s participation
is equal in proportion along with the Government of India and inasmuch
as the development of the project was in the interest of the public at
large the GO dated 21.05.2012 came to be issued.
12. Aggrieved by the Order of the Government in GO Ms. No.168 of
21.05.2012, the First Respondent and various other persons who were in
possession of the other adjacent lands, which were also covered by the
abovesaid GO, approached the High Court by filing Writ Petitions. The
First Respondent’s Writ Petitions were Writ Petition Nos.19469/2012
and 19470/2012 wherein he sought for issuance of a writ of Certiorari
to call for the records of the proceedings in GO No.168 of 21.05.2012
and the consequential proceedings of the Tehsildar dated 21.06.2012 as
well as the proceedings of the AG & OT dated 25.06.2012 and for
quashing the said proceedings. It is stated that pursuant to the
issuance of the GO Ms. No.168 dated 21.05.2012, the Tehsildar of Fort
Tondiarpet Taluk issued a notice to AG & OT on 21.06.2012 for
resumption of the land and handover vacant possession. Individual
notices were also stated to have been issued to all the occupants
including the First Respondent asking them to vacate the premises and
remove their belonging and handover vacant possession. In turn, the AG
& OT by its notice 25.06.2012 called upon the First Respondent and the
other tenants to vacate the premises immediately to enable the AG & OT
to handover possession to Chennai Metro.
13. By Order dated 26.11.2012, the Writ Petitions filed by the First
Respondent and other occupants came to be allowed by the learned
Single Judge and the GO Ms. No.168 dated 21.05.2012 was set aside.
Aggrieved by the Judgment of the learned Single Judge the appellants
herein preferred Writ Appeals 68 to 106 of 2013. The Division Bench
after a detailed discussion allowed Writ Appeal Nos. 70 to 88 and 91
to 106 of 2013 holding that the said Chennai Metro Rail Project, a
joint venture of Central Government was to enhance the public
transport system in Chennai and being a public project, any delay in
implementation would oust the public purpose for which the lands were
sought to be retrieved. However, Writ Appeal Nos.68, 69, 89 and 90 of
2013 which related to the lands falling under Survey No.43/2 which are
in the possession of the First Respondent were concerned, according to
the Division Bench the same stood on a different footing. The
Division Bench in its order held as under in paragraph 28:
“28. The map published by CMRL, showing various structures they are
going to erect in the area, indicate that the area earmarked for CMRL
project does not include the ease area of the writ petitioner in W.P.
Nos.19469 and 19470 of 2012 (connected to W.A. Nos. 68, 69, 89 and 90
of 2013). It is also clear from the map that the entire lands
required for the CMRL projects like the Underground Metro Station etc.
are on the Northern side of the Poonamalle High Road, where vast
extent of other vacant lands are available, including the erstwhile
Hotel Picnic area. As already stated supra, pursuant to the lease
deed entered into by this petitioner with AG & OT, this petitioner
raised a huge construction with his own funds and doing his own
business and the said lease has been extended upto the year 2027. No
default of any sort on his part has been alleged by any of the
parties. When the lands and building in possession and occupation of
this petitioner are outside the purview of the CMRL project, as has
been discussed supra, ordering handing over of the vacant possession
of the said lands by this petitioner for the purpose of CMRL, is
nothing but requiring him to demolish the building in his possession.
At this juncture we feel it apt to hold that ordering demolition of
buildings, for no legal or useful purposes, is nothing but wastage of
public resources. Given the facts and circumstances of the case that
the lands and building raised by this petitioner are outside the
purview of the CMRL and not in violation of any law, including the
building and tenancy laws, we have no doubt to hold that the lands and
building in possession and enjoyment of this petitioner are entitled
to be excluded from the project area. Thereafter, the order passed by
the learned single Judge in W.P. Nos. 19469 of 2012 and 19470 of 2012
stands modified and both the above writ petitions stand allowed.
Consequently, W.A. Nos. 68, 69, 89 and 90 stand dismissed.”
14. A reading of the said paragraph disclose that in its opinion the lands
required for Central Chennai Metro Rail Project for locating its
underground Metro Station etc. were all noted on the northern side of
the arterial road namely Poonamallee High Road, that vast extent of
other vacant lands were available including the erstwhile hotel called
‘the Hotel Picnic’ and that in so far as the first Respondent was
concerned, he was granted a lease which is to be in operation till the
year 2027 and on these two grounds the Division Bench took the view
that the GO Ms.168 dated 21.05.2012 cannot be justified and confirmed
the order of the learned Single Judge in WP 19469 of 2012 and 19470 of
2012 and dismissed the Writ Appeal Nos.68, 69, 89 and 90 of 2013.
15. Mr. Nageswara Rao, learned Additional Solicitor General in his
submission while assailing the Judgment of the Division Bench
contended that the basis for setting aside the impugned GO Ms. No.168
dated 21.05.2012 by the Division Bench was that the land in question,
namely, the one which fell within Survey No.43/2 was not part of the
project land and that the First Respondent has been granted a lease by
the AG & OT till the year 2027 and, therefore, the impugned GO cannot
be sustained. The learned Additional Solicitor General by referring to
the above paragraph 28 of the Division Bench submitted that the
Division Bench thoroughly misled itself when it stated that the
underground Metro Station has been planned in the project on the
Northern side of the Poonamallee High Road where certain other lands
are available which can be acquired and inasmuch as the First
Respondent has got a long lease in his favour from the AG & OT, the
Chennai Metro as well as the State Government was not justified in
passing the impugned GO dated 21.05.2012. In so far as the lands in
Survey No.43/2, the learned Additional Solicitor General took us to
the plans which were part of the material papers placed before the
High Court which are now annexed and found in pages 164-167 and
submitted that while on the Northern side of the Poonamallee High Road
the underground Metro Station has been planned, the present lands
situated in Survey No.43/2 as well as the adjacent lands in Survey
No.41 have been earmarked for various other important developments to
be carried out as part of the project such as the setting up of
mechanical plant rooms, electrical plant rooms, building services,
drop-off and pick-up facilities and the Airport check-in facilities in
Survey No.43/2 and ventilation shaft, entry/exit, sub way, feeder bus
stand, multi-model facilities, pick-up and drop-off bay, MTC Bus bay
and fireman staircase in Survey No.41 and that the entire lands in
Survey No.41 and 43/2 belong to the State Government and, therefore,
the Division Bench unfortunately failed to advert to the above details
which were placed before it which resulted in the passing of the
impugned judgment.
16. Learned Additional Solicitor General also submitted that as against
the Division Bench Judgment relating to the other Writ Appeals which
were allowed in favour of the Chennai Metro and State Government,
Civil Appeal Nos.6065-6068 of 2013 and connected Special Leave
Petitions were filed wherein this Court taking note of the submission
of learned Solicitor General that the State of Tamil Nadu would issue
notices inviting all the stake-holders liable to be affected by
adverse orders an opportunity to respond to the reasons which weighed
with the State Government to evict them from the premises in question
permitted the State Government to issue such notices and after getting
the response from those parties pass appropriate orders. Learned
Additional Solicitor General also submitted that the said exercise was
carried out by issuing notices and after receipt of the response,
orders were passed for taking over of the lands from the concerned
occupants and that fresh proceedings have been initiated by those
occupants which are stated to be pending consideration before the High
Court.
17. Mr. Gopal Subramanium, learned Senior Counsel appearing for the First
Respondent also confirmed the said statement of learned Additional
Solicitor General. Mr. Gopal Subramanium, however, contended that
similar orders can be passed in these appeals also to enable the First
Respondent to submit his response and, thereafter, the Appellants can
pass appropriate orders. The learned Senior Counsel for the First
Respondent in his submission contended that in the sketch which are
enclosed and kept at page 164 to 167 of the Special Leave Petition
papers adjacent to the Survey No. 43/2, there were some other
structures belonging to different parties and that the Appellants have
excluded those lands on the footing that some heritage building was
located and, therefore, the First Respondent, whose leasehold lands
are located closely adjacent to those left out built-up area, in the
event of an opportunity being extended to the First Respondent, he
will be able to satisfy the authorities to exclude his leasehold lands
also from the purview of taking over by the Chennai Metro. Mr. Gopal
Subramanium also referred to an affidavit on behalf of Chennai Metro
dated April, 2011 in O.S.A. No.100-101 of 2011 to contend that the
averments contained therein support the stand of the First Respondent
to persuade the Chennai Metro to look for some other alternate lands.
18. While considering the submissions of learned Additional Solicitor
General and Mr. Gopal Subramanium, learned Senior Counsel for the
First Respondent, inasmuch as we find that the reasoning of the
Division Bench in having stated that the underground Metro Station has
been planned in a stretch of Land on the Northern side of the Arterial
Road, namely, Poonamallee High Road and that certain other lands were
available in that side and, therefore, there was no necessity for
taking over the lands in the possession of the First Respondent is
patently a conclusion which was contrary to the records placed before
the Division Bench and the same cannot be sustained. In other words,
as rightly pointed out by learned Additional Solicitor General, the
conclusion of the Division Bench that the lands concerned in these
Appeals, namely, the one situated in Survey No.43/2 were not part of
the project of the Chennai Metro was a wrong assimilation of facts.
When it has been demonstrated before us based on the project details
and the plan annexed with it, which 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-modal facilities,
pick-up and drop-off bay, MTC Bus bay, fireman staircase, entry and
exit points, 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. In our considered view, the
failure of the Division Bench in noting the details displayed in the
plan and the project which were placed before it has resulted in the
passing of the impugned Order. The Division Bench failed to note that
the project details 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 purpose of carrying
out the Metro Project and referred to an affidavit filed before the
Division Bench by the Managing Director of Chennai Metro Rail Limited.
The learned Senior Counsel submitted that in the said affidavit the
reference to the Metro Rail Station planned along the Poonamallee High
Road has been stated and while referring to the same, a specific
reference was made to the private buildings located opposite to Picnic
Hotel and that acquisition of those private lands would cost dearly to
the State Exchequer apart from evacuation of the tenants/owners would
consume considerable length of time which would in turn cause delay in
the construction of the underground Station. When we perused the said
affidavit which has been extracted in the reply affidavit filed by the
Managing Director of Chennai Metro in W.P. No.19469 of 2012, we find
that statement came to be made when a litigation was launched at the
instance of Hotel Picnic and while meeting the stand of Hotel Picnic,
it was stated that the above statement came to be made. We do not
find any scope to reject the stand of the Appellant with reference to
the lands situated in Survey No.43/2 which had nothing to do with the
construction of the underground Metro Station. Though, the various
other units to be set up in the lands in Survey No.43/2 were also part
of the Metro Project as has been demonstrated before us based on
relevant documents, the reference to the Heritage Buildings and other
private buildings situated opposite to Hotel Picnic was referred to by
Chennai Metro while pointing out its inability to plan the setting up
of underground Metro Station in any other land except the lands where
Hotel Picnic was situated. Therefore, the said submission of the
learned Senior Counsel for the First Respondent does not in any way
support the stand of the First Respondent. As far as the contention
of Mr. Gopal Subramanium that like in the case of other occupants
wherein a direction was issued by this Court to give a show cause
notice and decide the matter, the said contention cannot be
countenanced in this case inasmuch as before the Division Bench of the
High Court as well as before us the issue was argued on merits. In
fact, the Division Bench after hearing the Appellants and the First
Respondent allowed both his Writ Petitions by modifying the order of
the learned Single Judge and thereby held that 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 then present value whichever shall be less of any building
erected or other works executed in the land. Though, learned
Additional Solicitor General sought to contend as was also contended
before the High Court that by leasing out the lands to different
parties the condition No.1 was violated, namely, that the land was put
to different use than for what it was granted, we do not find any good
grounds to accept the same. On the other hand, we find that the Trust
itself was vested with the AG & OT on 18.08.1970 pursuant to a Scheme
Decree framed by the High Court in C.S. No.90 of 1963. From then
onwards, the AG & OT was administering the Trust and was apparently
fulfilling the purpose for which the Trust came to be created, though,
by leasing out the lands to different individuals for the purpose of
generating income from the lands. The AG & OT by approaching the High
Court, as and when required, seem to have granted the lease of the
lands to different parties based on the orders passed by the High
Court.
21. In so far as the First Respondent was concerned, his lease came into
existence initially on 22.12.1972, and by Order dated 10.12.2004 in
Application No.915 of 2003, the lease in favour of the First
Respondent was extended for a further period of 25 years by enhancing
the rent. The said order was also confirmed by the Division Bench in
the Order dated 20.08.2009 in O.S.A. No.298 of 2004. In the said
circumstances, it cannot be held that the said possession with the
First Respondent was unlawful.
However, on that basis when it comes to
the question of resumption of the land by the State Government when
the Government through the AG & OT thought it fit to resume the lands
which was in accordance with the terms contained in the Original
Grant, namely, GOS No.763 and 253 dated 09.12.1898 and 17.01.1899,
there would be no scope for the First Respondent to contend that the
Appellants are not entitled for the resumption of the lands situated
in Survey No.43/2.
22. We, therefore, hold that the State Government as the owner of the land
and having regard to the right retained by it while making the grant
in the years 1898 and 1899 and in the larger public interest of
setting up of the Chennai Metro Project the lands were required by it,
the same cannot be questioned by the Original Grantee or by the
lessees whose holding was subordinate in character to the 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 to value the buildings belonging to
the First Respondent standing in Survey No.43/2 and determine the
compensation and pay the same to the First Respondent. The said
exercise of valuation and payment of compensation shall be effected
within three months from this date.
25. In the light of our above orders, the First Respondent is directed to
surrender possession of the lands in Survey No.43/2 in an extent of
5644 sq. ft. through the AG & OT within four weeks from the date of
receipt of copy of this judgment. With the above directions, these
appeals are allowed.
…..……….…………………………...J.
[A.K. Patnaik]
…………….………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi;
February 21, 2014
We, therefore, hold that the State Government as the owner of the land
and having regard to the right retained by it while making the grant
in the years 1898 and 1899 and in the larger public interest of
setting up of the Chennai Metro Project the lands were required by it,
the same cannot be questioned by the Original Grantee or by the
lessees whose holding was subordinate in character to the 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.
Therefore, while allowing the Appeals of the State Government as well
as the Chennai Metro and while setting aside the Judgment of the
Division Bench, Writ Appeal Nos.68, 69, 89 and 90 of 2013 are allowed.
We, however, direct the Appellants to value the buildings belonging to
the First Respondent standing in Survey No.43/2 and determine the
compensation and pay the same to the First Respondent. The said
exercise of valuation and payment of compensation shall be effected
within three months from this date.
25. In the light of our above orders, the First Respondent is directed to
surrender possession of the lands in Survey No.43/2 in an extent of
5644 sq. ft. through the AG & OT within four weeks from the date of
receipt of copy of this judgment. With the above directions, these
appeals are allowed.
2014(Feb.Part) judis.nic.in/supremecourt/filename=41243
A.K. PATNAIK, FAKKIR MOHAMED IBRAHIM KALIFULLA
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2572-2573 OF 2014
(@ SLP (C) NOS.26020-26021 OF 2013)
The M.D., Chennai Metro Rail Ltd. …Appellant
VERSUS
N. Ismail & Ors. …Respondents
With
CIVIL APPEAL NOS. 2575-2578 OF 2014
(@ SLP (C) NOS.26199-26202 OF 2013)
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. I.A. Nos.1-2 & I.A. Nos.1-4, applications for impleadment, filed in
Special Leave Petition (C) Nos.26020-26021 of 2013 and Special Leave
Petition (C) Nos.26199-26202 of 2013, are allowed. Registry to carry
out necessary amendment.
2. Leave granted.
3. These appeals have been filed by the State of Tamil Nadu represented
by the Managing Director of Chennai Metro Rail Ltd. and the Principal
Secretary to Government Revenue LD-1(1) Department.
The issue
concerned in these appeals relates to an extent of 5 Grounds and 275
sq.ft. of land in T.S. No.43/2 in Chennai District, Fort Tondiarpet
Taluk, Block No.7 of Vepery Village.
The abovesaid land along with
another land in an extent of one Cawni 10 Grounds and 1871 sq.ft. in
T.S. No.41 of the same Vepery Village, Fort Tondiarpet Taluk, Chennai
District was granted by the Government of Tamil Nadu to one Sir
Ramaswamy Mudaliar to build a Choultry for the use of persons who come
by rail from different parts of the presidency and who have no homes
or friends in Madras.
The Government while assigning the above lands
to Sir Ramaswamy Mudaliar imposed certain conditions to the effect
that the Choultry should be available for the free use of railway
travelers, that the buildings constructed should be approved by the
Government and more importantly, “that the land shall be liable to
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 the Government”.
4. The said lands were granted and assigned in favour of Sir Ramaswamy
Mudaliar by GO Ms. Nos.763 and 253 dated 09.12.1898 and 17.01.1899
respectively whereas the conditions were incorporated in the following
words
“(1) that the land shall revert to Government when it ceases to
be used for the purpose for which it is granted and (2) that should
the 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”.
5. Subsequently, under a Scheme Decree framed by the High Court of
Judicature at Madras in C.S. No.90 of 1963 all the above mentioned
properties held by Sir Ramaswami Mudaliar’s Choultry were vested with
the Administrator General and Official Trustee (hereinafter referred
to as “the AG & OT) of Tamil Nadu on 18.08.1970. From then onwards the
management of the Trust and the properties attached with 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 and T.S. No.43/2 to
various tenants and was collecting the rent. As far as T.S. No.43/2
comprised in an extent of 5644 sq.ft. was concerned, the same was
leased out to the first respondent herein under the lease deed dated
22.12.1972. According to the AG & OT, the First Respondent is in
arrears and as on 31.12.2012, the arrears payable by the First
Respondent works out to a sum of Rs.94,84,630/- which has been
computed and determined by the High Court of Madras. It is also
stated that the First Respondent has preferred Special Leave
Petition(C) No.11-12 of 2010 against the said determination and claim
which is pending in this Hon’ble Court.
6. According to the First Respondent, pursuant to the lease granted in
his favour, which was registered as document 105 of 1974 in the Office
of Sub-Registrar, West Madras, he constructed a Hotel and started the
business in the year 1987. According to him, subsequently, an adjacent
piece of land measuring 4141 sq. ft was granted on lease for a period
of 30 years to one Smt. Vatsala again based on the Order of the High
Court of Madras, which was also supported by a registered Lease Deed
dated 29.04.1982 bearing Document No.1492/1984 registered in the
office of the Registrar, Madras (North).
The said Smt. Vatsala also
stated to have transferred her lease hold right in respect of the said
extent to the First Respondent which was also stated to have been
approved by the Official Trustee in the proceeding dated 05.04.1989 in
R.O.C. No.2390 of 1989/OT. The First Respondent claimed to have put up
two pucca structures and running two Star Hotels known as ‘Hotel
Central Tower’ and ‘Hotel Howrah’.
The First Respondent also claimed
to have got the approval of the Municipality, State Government and
other authorities and that the buildings were duly assessed for
property tax and other statutory dues.
By Order dated 10.12.2004 in
Application No.915/2003, the lease in favour of the First Respondent
was stated to have been extended for a further period of 25 years by
enhancing the rent payable by him.
The First Respondent also relied
upon an Order of the Division Bench of the High Court dated 20.08.2009
in support of the extension of the lease passed in O.S.A. No.298 of
2004 and connected batch cases.
According to the First Respondent
because of his old age and other physical ailments he entered into a
partnership arrangement with the applicant in I.A. Nos.1 and 2 of 2014
in Special Leave Petition (C) No.26020-21 of 2013 under the
partnership deed dated 28.03.2013.
7. Be that as it may, having regard to the unprecedented growth of
population in general, as well as with particular reference to the
Metropolitan City of Chennai, there was an imminent need for providing
better transport facilities for the commuters and office goers, as
well as business people, which persuaded the State to expand the rail
transport facility in the City of Chennai. With that avowed object,
the appellant in Special Leave Petition (C) No.26020-21 of 2013 came
into being and the said Chennai Metro Rail Limited planned a project
called ‘Chennai Metro Rail Project’ which envisaged construction of
two corridors under Phase-1. Corridor 1 starts from Washermenpet and
ends at Airport for a length of 23.1 kms. and Corridor 2 starts from
Chennai Central and ends at St. Thomas Mount Station for a length of
22 kms. As per the project, the portions of Corridor 1 with a length
of 14.3 kms. between Washermenpet to Saidapet and in Corridor - 2 with
a length of 9.7 kms. from Chennai Central to Anna Nagar would be
underground corridors and the remaining in an elevated position.
8. The Chennai Metro Rail Limited is stated to be a Special Purpose
Vehicle (SPV) formed for the purpose of implementing the ‘Chennai
Metro Rail Project’. The Project is stated to be funded by the
Government of India and the State Government by way of equal equity
contribution in subordinate debt. (Government of India 20%, Government
of Tamil Nadu 20.78% and the balance 59.22% being met from the loan
assistance from Japan International Co-operation agency). The
Government of India is stated to have accorded sanction for the
project as well as for its participation.
9. The lands concerned in these appeals are covered by the project,
namely, Corridor 1, i.e. from Washermenpet to Chennai Airport.
According to the appellant, in Special Leave Petition (C) No.26020-21
of 2013, the project is a time bound project with an objective to ease
out phenomenal growth of traffic congestion in the City of Chennai and
any delay in carrying out the project would affect the plans announced
by the Government of India, as well as, the State Government, the
convenience of the public of Chennai and further will lead to
contractual implications such as extension of time and escalation of
project costs, which in turn would cost the public exchequer several
hundred crores of rupees. According to the Chennai Metro, any further
delay on any account, apart from causing high amount of cost
escalation, would also deprive the citizens of Chennai a safe and
quick means of public transport. It is stated that the Chennai Metro
in its project report has described in detail the various length of
the projects and in the said statement, designed constructions of
underground stations at Washermenpet, Mannadi, High Court, Chennai
Central and Egmore and associated tunnels, the details of the
location, the description, the access date from commencement of the
works with particular reference to the number of days and the vacate
date from commencement of the work with particular reference of number
of days is specified after making meticulous calculations.
10. Mr. Nageswara Rao, learned Additional Solicitor General appearing for
the appellants brought to our notice the work which was to be carried
out in the land concerned in this appeal which has been noted in the
column under locations/drawing reference bearing No.SCC-14 and the
description has been shown as entrance area. As far as access date is
concerned, it is noted as 365 days from commencement of the works and
the date to be vacated after completion of the work from the date of
commencement is noted as 1520 days. According to learned Additional
Solicitor General, for the purpose of starting the work in the land in
question, as per the schedule, the Chennai Metro should have access to
the land within 365 days of the commencement of the project and
complete the work in that land within 1520 days from the date of such
access. It was pointed out that such details have been specified in
the contract agreement and that to ensure that the works are carried
out without any deviation and within the time schedule, the required
plans were also prepared in so far as it related to SCC-14 and was
submitted with the details of lands falling under Survey No.43/2. The
learned Additional Solicitor General also submitted that the said land
were earmarked for erecting a mechanical plant room, electrical plant
room, building services, drop-off and pick-up facilities and Airport
check-in facilities. The plan which were enclosed along with the
Special Leave Petition paper book between pages 164 to 167 disclose
the area falling under Survey No.43/2, the various facilities to be
set up in that land along with the other facilities to be provided in
the lands adjacent to the said Survey No.43/2.
11. It was also the case of the Chennai Metro that since the lands in
Survey No.43/2 belong to the State Government and was imminently
required for the Chennai Metro Project which was out and out in public
interest, the State Government came forward to allot the said lands
after retrieving it from Sir Ramaswamy Mudaliar Choultry through the
AG & OT and by GO Ms. No.168 dated 21.05.2012 passed orders to that
effect. Before issuing the said GO, the procedure to be followed for
transfer of the said lands in favour of the Chennai Metro Pvt. Limited
were also carried out. As the lands belong to the State Government
there was no necessity for any acquisition being involved or any
payment of compensation to be made in favour of anyone except for the
Buildings standing thereon. Since the State Government’s participation
is equal in proportion along with the Government of India and inasmuch
as the development of the project was in the interest of the public at
large the GO dated 21.05.2012 came to be issued.
12. Aggrieved by the Order of the Government in GO Ms. No.168 of
21.05.2012, the First Respondent and various other persons who were in
possession of the other adjacent lands, which were also covered by the
abovesaid GO, approached the High Court by filing Writ Petitions. The
First Respondent’s Writ Petitions were Writ Petition Nos.19469/2012
and 19470/2012 wherein he sought for issuance of a writ of Certiorari
to call for the records of the proceedings in GO No.168 of 21.05.2012
and the consequential proceedings of the Tehsildar dated 21.06.2012 as
well as the proceedings of the AG & OT dated 25.06.2012 and for
quashing the said proceedings. It is stated that pursuant to the
issuance of the GO Ms. No.168 dated 21.05.2012, the Tehsildar of Fort
Tondiarpet Taluk issued a notice to AG & OT on 21.06.2012 for
resumption of the land and handover vacant possession. Individual
notices were also stated to have been issued to all the occupants
including the First Respondent asking them to vacate the premises and
remove their belonging and handover vacant possession. In turn, the AG
& OT by its notice 25.06.2012 called upon the First Respondent and the
other tenants to vacate the premises immediately to enable the AG & OT
to handover possession to Chennai Metro.
13. By Order dated 26.11.2012, the Writ Petitions filed by the First
Respondent and other occupants came to be allowed by the learned
Single Judge and the GO Ms. No.168 dated 21.05.2012 was set aside.
Aggrieved by the Judgment of the learned Single Judge the appellants
herein preferred Writ Appeals 68 to 106 of 2013. The Division Bench
after a detailed discussion allowed Writ Appeal Nos. 70 to 88 and 91
to 106 of 2013 holding that the said Chennai Metro Rail Project, a
joint venture of Central Government was to enhance the public
transport system in Chennai and being a public project, any delay in
implementation would oust the public purpose for which the lands were
sought to be retrieved. However, Writ Appeal Nos.68, 69, 89 and 90 of
2013 which related to the lands falling under Survey No.43/2 which are
in the possession of the First Respondent were concerned, according to
the Division Bench the same stood on a different footing. The
Division Bench in its order held as under in paragraph 28:
“28. The map published by CMRL, showing various structures they are
going to erect in the area, indicate that the area earmarked for CMRL
project does not include the ease area of the writ petitioner in W.P.
Nos.19469 and 19470 of 2012 (connected to W.A. Nos. 68, 69, 89 and 90
of 2013). It is also clear from the map that the entire lands
required for the CMRL projects like the Underground Metro Station etc.
are on the Northern side of the Poonamalle High Road, where vast
extent of other vacant lands are available, including the erstwhile
Hotel Picnic area. As already stated supra, pursuant to the lease
deed entered into by this petitioner with AG & OT, this petitioner
raised a huge construction with his own funds and doing his own
business and the said lease has been extended upto the year 2027. No
default of any sort on his part has been alleged by any of the
parties. When the lands and building in possession and occupation of
this petitioner are outside the purview of the CMRL project, as has
been discussed supra, ordering handing over of the vacant possession
of the said lands by this petitioner for the purpose of CMRL, is
nothing but requiring him to demolish the building in his possession.
At this juncture we feel it apt to hold that ordering demolition of
buildings, for no legal or useful purposes, is nothing but wastage of
public resources. Given the facts and circumstances of the case that
the lands and building raised by this petitioner are outside the
purview of the CMRL and not in violation of any law, including the
building and tenancy laws, we have no doubt to hold that the lands and
building in possession and enjoyment of this petitioner are entitled
to be excluded from the project area. Thereafter, the order passed by
the learned single Judge in W.P. Nos. 19469 of 2012 and 19470 of 2012
stands modified and both the above writ petitions stand allowed.
Consequently, W.A. Nos. 68, 69, 89 and 90 stand dismissed.”
14. A reading of the said paragraph disclose that in its opinion the lands
required for Central Chennai Metro Rail Project for locating its
underground Metro Station etc. were all noted on the northern side of
the arterial road namely Poonamallee High Road, that vast extent of
other vacant lands were available including the erstwhile hotel called
‘the Hotel Picnic’ and that in so far as the first Respondent was
concerned, he was granted a lease which is to be in operation till the
year 2027 and on these two grounds the Division Bench took the view
that the GO Ms.168 dated 21.05.2012 cannot be justified and confirmed
the order of the learned Single Judge in WP 19469 of 2012 and 19470 of
2012 and dismissed the Writ Appeal Nos.68, 69, 89 and 90 of 2013.
15. Mr. Nageswara Rao, learned Additional Solicitor General in his
submission while assailing the Judgment of the Division Bench
contended that the basis for setting aside the impugned GO Ms. No.168
dated 21.05.2012 by the Division Bench was that the land in question,
namely, the one which fell within Survey No.43/2 was not part of the
project land and that the First Respondent has been granted a lease by
the AG & OT till the year 2027 and, therefore, the impugned GO cannot
be sustained. The learned Additional Solicitor General by referring to
the above paragraph 28 of the Division Bench submitted that the
Division Bench thoroughly misled itself when it stated that the
underground Metro Station has been planned in the project on the
Northern side of the Poonamallee High Road where certain other lands
are available which can be acquired and inasmuch as the First
Respondent has got a long lease in his favour from the AG & OT, the
Chennai Metro as well as the State Government was not justified in
passing the impugned GO dated 21.05.2012. In so far as the lands in
Survey No.43/2, the learned Additional Solicitor General took us to
the plans which were part of the material papers placed before the
High Court which are now annexed and found in pages 164-167 and
submitted that while on the Northern side of the Poonamallee High Road
the underground Metro Station has been planned, the present lands
situated in Survey No.43/2 as well as the adjacent lands in Survey
No.41 have been earmarked for various other important developments to
be carried out as part of the project such as the setting up of
mechanical plant rooms, electrical plant rooms, building services,
drop-off and pick-up facilities and the Airport check-in facilities in
Survey No.43/2 and ventilation shaft, entry/exit, sub way, feeder bus
stand, multi-model facilities, pick-up and drop-off bay, MTC Bus bay
and fireman staircase in Survey No.41 and that the entire lands in
Survey No.41 and 43/2 belong to the State Government and, therefore,
the Division Bench unfortunately failed to advert to the above details
which were placed before it which resulted in the passing of the
impugned judgment.
16. Learned Additional Solicitor General also submitted that as against
the Division Bench Judgment relating to the other Writ Appeals which
were allowed in favour of the Chennai Metro and State Government,
Civil Appeal Nos.6065-6068 of 2013 and connected Special Leave
Petitions were filed wherein this Court taking note of the submission
of learned Solicitor General that the State of Tamil Nadu would issue
notices inviting all the stake-holders liable to be affected by
adverse orders an opportunity to respond to the reasons which weighed
with the State Government to evict them from the premises in question
permitted the State Government to issue such notices and after getting
the response from those parties pass appropriate orders. Learned
Additional Solicitor General also submitted that the said exercise was
carried out by issuing notices and after receipt of the response,
orders were passed for taking over of the lands from the concerned
occupants and that fresh proceedings have been initiated by those
occupants which are stated to be pending consideration before the High
Court.
17. Mr. Gopal Subramanium, learned Senior Counsel appearing for the First
Respondent also confirmed the said statement of learned Additional
Solicitor General. Mr. Gopal Subramanium, however, contended that
similar orders can be passed in these appeals also to enable the First
Respondent to submit his response and, thereafter, the Appellants can
pass appropriate orders. The learned Senior Counsel for the First
Respondent in his submission contended that in the sketch which are
enclosed and kept at page 164 to 167 of the Special Leave Petition
papers adjacent to the Survey No. 43/2, there were some other
structures belonging to different parties and that the Appellants have
excluded those lands on the footing that some heritage building was
located and, therefore, the First Respondent, whose leasehold lands
are located closely adjacent to those left out built-up area, in the
event of an opportunity being extended to the First Respondent, he
will be able to satisfy the authorities to exclude his leasehold lands
also from the purview of taking over by the Chennai Metro. Mr. Gopal
Subramanium also referred to an affidavit on behalf of Chennai Metro
dated April, 2011 in O.S.A. No.100-101 of 2011 to contend that the
averments contained therein support the stand of the First Respondent
to persuade the Chennai Metro to look for some other alternate lands.
18. While considering the submissions of learned Additional Solicitor
General and Mr. Gopal Subramanium, learned Senior Counsel for the
First Respondent, inasmuch as we find that the reasoning of the
Division Bench in having stated that the underground Metro Station has
been planned in a stretch of Land on the Northern side of the Arterial
Road, namely, Poonamallee High Road and that certain other lands were
available in that side and, therefore, there was no necessity for
taking over the lands in the possession of the First Respondent is
patently a conclusion which was contrary to the records placed before
the Division Bench and the same cannot be sustained. In other words,
as rightly pointed out by learned Additional Solicitor General, the
conclusion of the Division Bench that the lands concerned in these
Appeals, namely, the one situated in Survey No.43/2 were not part of
the project of the Chennai Metro was a wrong assimilation of facts.
When it has been demonstrated before us based on the project details
and the plan annexed with it, which 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-modal facilities,
pick-up and drop-off bay, MTC Bus bay, fireman staircase, entry and
exit points, 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. In our considered view, the
failure of the Division Bench in noting the details displayed in the
plan and the project which were placed before it has resulted in the
passing of the impugned Order. The Division Bench failed to note that
the project details 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 purpose of carrying
out the Metro Project and referred to an affidavit filed before the
Division Bench by the Managing Director of Chennai Metro Rail Limited.
The learned Senior Counsel submitted that in the said affidavit the
reference to the Metro Rail Station planned along the Poonamallee High
Road has been stated and while referring to the same, a specific
reference was made to the private buildings located opposite to Picnic
Hotel and that acquisition of those private lands would cost dearly to
the State Exchequer apart from evacuation of the tenants/owners would
consume considerable length of time which would in turn cause delay in
the construction of the underground Station. When we perused the said
affidavit which has been extracted in the reply affidavit filed by the
Managing Director of Chennai Metro in W.P. No.19469 of 2012, we find
that statement came to be made when a litigation was launched at the
instance of Hotel Picnic and while meeting the stand of Hotel Picnic,
it was stated that the above statement came to be made. We do not
find any scope to reject the stand of the Appellant with reference to
the lands situated in Survey No.43/2 which had nothing to do with the
construction of the underground Metro Station. Though, the various
other units to be set up in the lands in Survey No.43/2 were also part
of the Metro Project as has been demonstrated before us based on
relevant documents, the reference to the Heritage Buildings and other
private buildings situated opposite to Hotel Picnic was referred to by
Chennai Metro while pointing out its inability to plan the setting up
of underground Metro Station in any other land except the lands where
Hotel Picnic was situated. Therefore, the said submission of the
learned Senior Counsel for the First Respondent does not in any way
support the stand of the First Respondent. As far as the contention
of Mr. Gopal Subramanium that like in the case of other occupants
wherein a direction was issued by this Court to give a show cause
notice and decide the matter, the said contention cannot be
countenanced in this case inasmuch as before the Division Bench of the
High Court as well as before us the issue was argued on merits. In
fact, the Division Bench after hearing the Appellants and the First
Respondent allowed both his Writ Petitions by modifying the order of
the learned Single Judge and thereby held that 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 then present value whichever shall be less of any building
erected or other works executed in the land. Though, learned
Additional Solicitor General sought to contend as was also contended
before the High Court that by leasing out the lands to different
parties the condition No.1 was violated, namely, that the land was put
to different use than for what it was granted, we do not find any good
grounds to accept the same. On the other hand, we find that the Trust
itself was vested with the AG & OT on 18.08.1970 pursuant to a Scheme
Decree framed by the High Court in C.S. No.90 of 1963. From then
onwards, the AG & OT was administering the Trust and was apparently
fulfilling the purpose for which the Trust came to be created, though,
by leasing out the lands to different individuals for the purpose of
generating income from the lands. The AG & OT by approaching the High
Court, as and when required, seem to have granted the lease of the
lands to different parties based on the orders passed by the High
Court.
21. In so far as the First Respondent was concerned, his lease came into
existence initially on 22.12.1972, and by Order dated 10.12.2004 in
Application No.915 of 2003, the lease in favour of the First
Respondent was extended for a further period of 25 years by enhancing
the rent. The said order was also confirmed by the Division Bench in
the Order dated 20.08.2009 in O.S.A. No.298 of 2004. In the said
circumstances, it cannot be held that the said possession with the
First Respondent was unlawful.
However, on that basis when it comes to
the question of resumption of the land by the State Government when
the Government through the AG & OT thought it fit to resume the lands
which was in accordance with the terms contained in the Original
Grant, namely, GOS No.763 and 253 dated 09.12.1898 and 17.01.1899,
there would be no scope for the First Respondent to contend that the
Appellants are not entitled for the resumption of the lands situated
in Survey No.43/2.
22. We, therefore, hold that the State Government as the owner of the land
and having regard to the right retained by it while making the grant
in the years 1898 and 1899 and in the larger public interest of
setting up of the Chennai Metro Project the lands were required by it,
the same cannot be questioned by the Original Grantee or by the
lessees whose holding was subordinate in character to the 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 to value the buildings belonging to
the First Respondent standing in Survey No.43/2 and determine the
compensation and pay the same to the First Respondent. The said
exercise of valuation and payment of compensation shall be effected
within three months from this date.
25. In the light of our above orders, the First Respondent is directed to
surrender possession of the lands in Survey No.43/2 in an extent of
5644 sq. ft. through the AG & OT within four weeks from the date of
receipt of copy of this judgment. With the above directions, these
appeals are allowed.
…..……….…………………………...J.
[A.K. Patnaik]
…………….………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi;
February 21, 2014
