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P. Devendran v. The State Of Tamil N...
Comprehensive Summary of the Opinion (Land Acquisition — Thiruvanmiyur)
Factual and Procedural Background
The petitioner challenged acquisition proceedings in respect of lands bearing S. Nos. 85/2 (0.27 acres), 85/3 (5.26 acres) and 85/5 (1.90 acres) in Thiruvanmiyur village. The State issued a notification under Section 4(1) of the Land Acquisition Act for acquisition as part of the Besant Nagar Phase II Scheme; the Section 4(1) notification was published on 9-8-1978 and a declaration under Section 6 was published on 8-8-1981.
The petitioner filed Writ Petition No. 10128 of 1981 challenging the Section 6 declaration, asserting entitlement to exclusion (in particular for S. No. 85/3) because an approved layout existed prior to the Section 4(1) notice. Mohan, J. allowed the writ petition on 23-1-1984, quashing the Section 6 declaration and remitting the matter to the Government. The State appealed (W.A. No. 304 of 1985); the first Bench dismissed the writ appeal on 1-3-1990.
After dismissal of the appeal, the petitioner received a notice dated 28-1-1991 to appear and submit objections to the 9-8-1978 Section 4(1) notification. The petitioner objected and challenged the continued viability of the acquisition based on the contention that a Section 6 declaration cannot be made after three years from the Section 4(1) notification, and raised allegations of inaction, discrimination (neighbouring lands having been exempted), and unfair compensation valuation if acquisition were to be proceeded with now.
The Court issued notice on 20-2-1991. Respondents filed a counter-affidavit accepting the factual chronology up to the dismissal of the writ appeal. The Government instructed the Special Tahsildar to proceed with a fresh enquiry under Section 5-A and to submit a draft declaration under Section 6; notice under Section 5-A was issued to the petitioner on 28-1-1991. The Government later withdrew acquisition proceedings in respect of S. No. 85/3 on 1-7-1992.
Legal Issues Presented
- Whether the Section 4(1) notification dated 9-8-1978 can be enforced against the petitioner after the lapse of time and after subsequent court proceedings which resulted in quashing of the Section 6 declaration.
- Whether a declaration under Section 6 of the Act made after three years from the date of the Section 4(1) notification is valid — and specifically whether a second/renewed declaration must also be within three years, or whether the requirement is satisfied if the "first declaration" was within three years (as argued with reliance on Chinnathambi Gounder).
- Whether the principle that acts of the court should prejudice nobody (actus curiae neminem gravabit) applies to extend or exclude delays caused by pending court orders from the computation of the three-year period in the proviso to Section 6.
- Whether the Section 4(1) notification should be set aside in respect of the petitioner's lands (including claims of discrimination and concerns about compensation).
Arguments of the Parties
Petitioner's Arguments (as summarized from the opinion)
- The Section 4(1) notification of 9-8-1978 cannot now be enforced against the petitioner because the declaration under Section 6 dated 8-8-1981 (which had been quashed) cannot validly be made after three years from the Section 4(1) notice; reliance placed on the proviso to Section 6 as inserted by Central Act No. 68 of 1981.
- There has been gross and culpable inaction by respondents in implementing court orders within a reasonable time.
- Respondents have exempted lands abutting the petitioner's lands, proceeding only against the petitioner’s lands — an act claimed to be discriminatory and violative of Article 14.
- If acquisition proceeds now based on 1978 notification, compensation will be assessed at 1978 market rates, rendering compensation illusory if acquisition actually occurs after 1990.
- The petitioner relied on the decision in Vadadri Alias Chellappa v. State of Tamil Nadu (1990-1 M.L.J. 219) as a binding precedent with similar facts, and argued the notification should be set aside for the petitioner's lands.
Respondents' Arguments (as summarized from the opinion)
- The counter-affidavit does not dispute the factual chronology up to dismissal of the writ appeal. The Government proceeded to instruct a fresh enquiry under Section 5-A and to prepare a draft declaration under Section 6 after the appeal was dismissed.
- The respondents relied on the Full Bench decision in Chinnathambi Gounder v. Government of Tamil Nadu (93 L.W. 382 = 1980-2 M.L.J. 269 F.B) for the proposition that if the first declaration was made within three years from the date of notification, that suffices; the second declaration need not also be within three years.
- The respondents asserted that until the determination of exclusion proceedings and the dismissal of the writ appeal, the petitioner had not applied to the Government for exclusion that would have prevented the fresh proceedings.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Vadadri Alias Chellappa v. State of Tamil Nadu (1990-1 M.L.J. 219) | Applied to facts almost identical to the present case; used as authority to set aside acquisition based on prolonged delay and circumstances similar to the present facts. | The Court held that the judgment in Vadadri squarely applies to the facts of this case and relied on it to quash the Section 4(1) notification in respect of the petitioner's lands (subject to the withdrawal in respect of S. No. 85/3). |
| Chinnathambi Gounder v. Government of Tamil Nadu (93 L.W. 382 = 1980-2 M.L.J. 269 F.B) | The Full Bench applied the maxim actus curiae neminem gravabit (an act of the court shall prejudice nobody) to exclude periods during which proceedings/stay were pending from the computation of limitation under the proviso to Section 6. | The Court rejected reliance on this Full Bench decision as unsustainable in the present case, reasoning that subsequent legislative change (referred to in the opinion as Central Act 68 of 1984) and the Supreme Court's decision in Director, Income-tax v. Pooran altered the applicability of that Full Bench ratio. |
| Lakshmi Vinkatesan (Minor) v. Special Tahsildar Land Acquisition (referenced by Division Bench) | The Division Bench conceded the general principle that an act of Court shall prejudice nobody, but refused to apply it to a case of land acquisition because the three-year period specified in the proviso was absolute (as recorded in the opinion). | The opinion cites this Division Bench view as part of the historical jurisprudential landscape, and contrasts it with the Supreme Court's position in Director, Income-tax v. Pooran. |
| Director, Income-tax v. Pooran (Supreme Court decision cited in the opinion) | Holds that periods during which proceedings are stayed by a court should be excluded in computing periods of limitation; the maxim actus curiae neminem gravabit applies and the stay period need not be counted against the party affected. | The Court relied on the Supreme Court's reasoning in Director, Income-tax v. Pooran to conclude that the maxim actus curiae neminem gravabit is applicable to limitation periods, and used this to undermine the Division Bench's refusal to apply the principle in land acquisition matters and to explain why Chinnathambi Gounder cannot be followed in the present circumstances. |
Court's Reasoning and Analysis
The Court conducted a comparative analysis of the facts and precedents. The principal steps of the Court's reasoning as set out in the opinion are:
- Factual parity with Vadadri: The Court found that the facts before it were, "in all force," the same as those decided in Vadadri Alias Chellappa v. State of Tamil Nadu and therefore that the reasoning and result in Vadadri were directly applicable to these proceedings. The Government Advocate did not dispute the applicability of Vadadri.
- Rejection of Chinnathambi reliance: The respondents had relied on the Full Bench decision in Chinnathambi Gounder to argue that a first declaration within three years suffices and a later declaration need not be within three years. The Court held that reliance on Chinnathambi was "wholly unsustainable" for the present case because that Full Bench decision arose before subsequent legislative change (referred to in the opinion as Central Act 68 of 1984) and because the Supreme Court's decision in Director, Income-tax v. Pooran established that periods of stay should be excluded from limitation computations. The Court concluded Chinnathambi's principle does not survive these later developments for the facts at hand.
- Application of Supreme Court principle: The Court quoted Director, Income-tax v. Pooran to support the proposition that periods during which proceedings are stayed should be excluded in computing limitation periods, and used that reasoning to reject the Division Bench's contrary view recorded in Lakshmi Vinkatesan (that the three-year proviso is absolute).
- Relief and practical outcome: The Court noted that acquisition proceedings in respect of S. No. 85/3 had been withdrawn by the Government on 1-7-1992. Considering the applicability of Vadadri and the other reasoning above, the Court quashed the Section 4(1) notification and allowed the writ petition insofar as S. Nos. 85/2 and 85/5 were concerned.
- Procedural and remedial limits: The Court declined to award costs and expressly left open the State's statutory power to initiate fresh acquisition proceedings if it deemed acquisition necessary for a public purpose, recognizing the State's power of eminent domain.
Holding and Implications
Holding: The writ petition is allowed in part. The Court quashed the Section 4(1) notification insofar as it relates to S. Nos. 85/2 (0.27 acres) and 85/5 (1.90 acres). Acquisition proceedings in respect of S. No. 85/3 (5.26 acres) had been withdrawn by the Government on 1-7-1992.
Implications:
- Direct effect: The petitioner obtains relief for S. Nos. 85/2 and 85/5 by quashing of the 4(1) notification as applied to those lands; the State had already withdrawn proceedings for S. No. 85/3.
- No order as to costs was made by the Court.
- The State retains the statutory power to re-initiate acquisition proceedings afresh for a public purpose, exercising its authority of eminent domain, if it considers such action necessary.
- The opinion relies on and applies the precedent in Vadadri Alias Chellappa. The Court rejected reliance on Chinnathambi Gounder in light of later legislative developments and the Supreme Court's position in Director, Income-tax v. Pooran. The opinion does not state that it establishes a broader new principle beyond applying the cited precedents to the present facts.
Note: This summary is strictly confined to the materials and statements contained in the provided opinion and does not add or infer facts or legal conclusions beyond those explicitly recorded in the text.
1. The petitioner challenges the acquisition proceedings of certain lands in S. Nos. 85/2, 85/3 and 85/5 for an extent of 0.27 acres 5.26 acres and 1.90 acres respectively in Thiruvanmiyur village.
2. For the implementation of the Besant Nagar Phase II Scheme by the Tamil Nadu Housing Board, the Government sought to acquire certain lands including the petitioner's lands by a Notification under S. 4(1) of the Land Acquisition Act (hereinafter referred to as the “Act”) which was published in the Gazette on 9-8-1978. The declaration under S. 6 of the Act was published in the Gazette on 8-8-1981. The petitioner challenged the declaration under S. 6 of the Act by way of writ petition No. 10128 of 1981 in respect of those lands, mentioned above, on the ground that he has got an approved layout in respect of S. No. 85/3 prior to the publication of notice under S. 4(1) of the Act and that he is entitled to get exclusion of layouts approved prior to the publication of notification under S. 4 (1) of the Act. Mohan, J., (as he then was) allowed the Writ Petition No. 10128 of 1981 by order dated 23-1-1984 thereby quashing the declaration under S. 6 of the Act. The learned Judge remitted the matter back to the Government. Subsequently the State preferred a Writ Appeal in W.A No. 304 of 1985 against this order. The first Bench of this Court dismissed the writ appeal on 1-3-1990. After the disposal of the writ appeal, the petitioner received a notice on 28-1-1991 calling upon him to appear and submit his objections to the notification under S. 4(1) of the Act dated 9-8-1978. The petitioner having filed objections, has come up to this Court challenging the land acquisition proceedings issued under S. 4(1) of the Act and published on 9-8-1978. The petitioner alleges in the affidavit that the notice issued to the petitioner is not valid in law since a declaration under S. 6 of the Act cannot be made after three years after the publication of notification under S. 4(1) of the Act. It is also alleged that there has been a gross and culpable inaction on the part of the respondents in not implementing the orders of this Court within a reasonable time. It is also stated that the respondents themselves exempted the lands abutting the petitioner's lands on all the sides and that their proceeding with the petitioner's land alone is discriminatory and arbitrary and violative of Art. 14 of the Constitution. It is also pointed out in the affidavit that if the acquisition is allowed to be proceeded with, the petitioner will be paid compensation at the market rate of the year 1978 whereas the lands, if acquired after 1990, the compensation will be illusory. With these allegations, the petitioner is before me with the prayer as stated above.
3. Notice of motion has been ordered by this Court on 20-2-1991.
4. A counter affidavit has been filed by respondents 1 and 2. The facts upto the disposal of the writ appeal W.A No. 304 of 1985 dated 1-3-1990 are not disputed in the counter. Subsequent to the disposal of the writ appeal, the Government was addressed by the Special Tahsildar (Land Acquisition) to inform whether any decision has been taken by the Government in the light of the judgment in W.P No. 10128 of 1981. At that stage, the Government, it seems instructed the Special Tahsildar (Land Acquisition) to proceed with fresh enquiry under S. 5-A of the Act in respect of the lands covered in W.P No 10128 of 1981 and in W.A No. 304 of 1985 and to submit draft declaration under S. 6 of the Act immediately. In view of that it seems that a notice has been issued to the petitioner under S. 5-A of the Act. It is contended in the counter affidavit that it is enough if the first declaration is made within three years from the date of notification under S. 4(1) of the Act and the decision in Chinnathambi Gounder v. Government of of Tamil Nadu I. 93 L.W 382 = 980-2-M.L.J 269 F.B is relied upon in the counter-affidavit, for the proposition that if the first declaration is made within throe years from the date of notification it serves the purpose and that it cannot be contended that the second declaration should also be within a period of three years from the date of notification under S. 4(1) of the Act. It is also stated in the affidavit that the writ appeal filed by the Government was dismissed on 1-3-1990, that till that date the petitioner has not applied to the Government. On the basis of abovementioned judgments for exclusion, that fresh proceedings, were initiated and that notice under S. 5-A of the Act was issued on 28-1-1991.
5. Mr. Raghavan, the learned Senior Counsel mainly contends that the notification under S. 4(1) of the Act, issued in the year 1978 cannot be enforced against the petitioner at this stage. The learned counsel points out the Proviso to S. 6 of the Act which has been inserted by Central Act No. 68 of 1981. Relying upon the said Proviso, the learned Senior Counsel states that the State Government cannot take its own time and try to deprive the citizens of their property rights. The learned Senior Counsel points out that the notification under S. 4(1) of the Act is dated 9-8-1978 and the declaration under S. 6 of the Act is dated 8-8-1981 and that the same were quashed by this Court earlier. It is also pointed out by the learned Senior Counsel that the writ appeal was filed by the State and that the petitioner has not obtained an order of stay of operation of the order in writ petition during the period of appeal. According to the learned Senior Counsel no proceedings can be taken under the Act based upon the notification under S. 4(1) of the Act dated 9-8-1978. The learned Senior Counsel draws my attention to the decision of this Court in Vadadri Alias Chellappa v. State of Tamil Nadu . 1990-1-M.L.J 219. in which a decision his been taken by this Court with regard to certain lands for the very same purpose in the very same locality in almost similar circumstances. The learned Senior Counsel relies upon the said decision stating that the facts of the said case are almost similar to the facts of this case and as such the notification under S. 4(1) of the Act nude in this case, in so far as the petitioner's lands are concerned, should be set aside.
6. Mrs. Kalaiselvi, the learned Government Advocate (Housing) who appears for the respondents reiterates the contentions raised in the counter affidavit. Further the learned Government Advocate is not able to controvert the contentions of the learned Senior Counsel that the ratio in Vadadri Alias Chellappa v. State of Tamil Nadu would apply to the facts of this case.
7. Considering the arguments of the learned Senior Counsel appearing for the petitioner and of the learned Government Advocate (Housing), I am of the view that the facts of the case which are placed before me, in all force are one and the same to the case which I have decided in Vadadri alias Chellappa v. State of Tamil Nadu cited supra. In my view the judgment of this Court, mentioned supra, squarely applies to the facts of this case and the respondents cannot escape from that.
8. The reliance of the decision of a Full Bench of this Court in Chinnathambi Gounder v. Government of Tamil Nadu in my view, is wholly unsustainable. That was case which arose before the Central Act 08 of 1984 came into force. After coming into force of Act 68 of 1984, I do not think the principle laid down by the Full Bench of this Court in the above mentioned case will hold good. The Full Bench of this Court, in the decision cited supra, applied the maxim actus curiae neminem gravabit and took note of the fact that there was a stay in that case in favour of the petitioner and observed at page 278 as follows:
“…We will now proceed to consider the application of the maxim actus curiae neminem gravabit to the proceeding in question. This maxim “is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law”. (Vide Broom's Lega Maxims, Page 99). We have already adverted to the period during which Writ Petition No. 2544 of 1970 remained pending on the file of the Court. During that period there was an order of stay in favour of the petitioners. The Government was not therefore a free agent during that period to set right any mistakes committed by it. In spite of it, can time run out against Government so as to denude it of its full period of three years to make a declaration under S. 6(1) of the Act for acquiring the petitioners' lands? It is this anomaly which has been pointed out by Ismail, J, in Writ Petition No. 642 of 1969 in the following words:
“The anomaly of the acceptance of the argument of the learned Counsel for the petitioner in this behalf will become apparent in such a case because, without there being any deley on the part of the Government, it will be said to have been disabled from completing that acquisition.”
The Division Bench which disposed of Lakshmi Vinkatesan (Minor) v. Special Tahsildar Land Acquisition, has conceded, “that the principle that an act of Court shall prejudice nobody is well established”. It however, refused to apply the principle to a case of land acquisition, because, the period of three years specified in the proviso is absolute”. The Supreme Court has however, taken a different view in Director, Income tax v. Pooran. This decision had not been placed for consideration by the Division Bench of this Court. At page 71, of the report their Lordships have stated as follows:
“It is a well-established principle of judicial procedure that where any proceedings are stayed by an order of a Court or by an injunction issued by any Court, that period should be excluded in computing any period of limitation, laid down by law. Especially after the Limitation Act, 1963, the provisions of which are now applicable to all proceedings, a provision like Explanation (1) to S. 132 is superfluous and no argument can be based on it”.
Therefore, the view of the Division Bench that the maxim actus curiae neminem gravabit will net apply to a specific legislative measure providing limitation which does not except from its domain causes which, are delayed by reason of issuance of a Court's order, cannot be held a correct one. We therefore hold that as per the ratio laid down by the Supreme Court in Director, Income-tax v. Pooran, the maxim under consideration will apply to the legislative measure contained in the first proviso to S. 6(1) of the Act notwithstanding there being no express provision in the proviso to causes which are delayed by reason of issuance of a Court's order…”
After the passing of Central Act 68 of 1984, an express provision has been made, regarding the period of limitation when a stay order of the Court is in operation. So I do not think that the reliance of the learned Judge in Chinnathambi Gounder v. Government of Tamil Nadu . 1980-2-M.L.J 269. = 93 L.W 382 F.B will apply to the facts of this case.
9. However, the learned Counsel appearing for the petitioner points out that with regard to S. No. 85/3 measuring about 5.26 acres, acquisition proceedings have been withdrawn by the Government on 1-7-1992. Therefore, as I have already stated the notification under S. 4(1) of the Act is quashed and the writ petition shall stand allowed in so far as S. Nos. 85/2 and 85/5 measuring about 0.27 and 1.90 aces respectively are concerned. However, there will be no order as to costs. However, it is open to the respondent-State to proceed with the land acquisition proceedings afresh if it thinks necessary, as the acquisition is for the public purpose, exercising its power of eminent domain.
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