Acquisition Of Jayalalithaa's 'Veda Nilayam' : Madras HC Reserves Judgment On AIADMK's Appeal

While reserving the judgment, a Division Bench of Justice Paresh Upadhyay and Sathi Kumar Sukumara Kurup underscored that there was no doubt about the locus of the appellants, Anna Dravida Munnetra Kazhakam (AIADMK) and former AIADMK Minister C.Ve Shanmugam, for filing the third-party appeal since the leave was granted upon satisfaction of the same.

Among other things, the verdict reserved now would determine if the appellants are 'persons aggrieved or interested' in the subject matter of memorial according to The Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013 (RFCTLARR Act).

Even today, the court questioned the appellants as to why they hadn't approached the single judge bench when the matter was pending before it. The court also enquired if the said abstinence could be attributed to the fact that AIADMK was in power when the land acquisition proceedings were initially challenged. The court indicated that the requiring body under Section 95 of the Act and the elected government are not the same.

"Did AIADMK party identified itself as the State for the purposes of Land Acquisition proceedings and pursued its own interests as the State of Tamil Nadu?", the court asked the appellants.

Arguments Raised

For AIADMK and C.Ve Shanmugam

Senior advocate A. L Somayaji appearing for the appellants contended that Puratchi Thalaivi Dr.J.Jayalalithaa Memorial Foundation, constituted through Act No.32/2020. was already a party to the proceedings before Justice N. Sheshasaaye. The second appellant. The former minister, is one of the founding members of the said foundation. AIADMK was not a party to the proceedings then since the erstwhile government have been proactive in defending the conversion of 'Veda Nilayam' to Jayalalithaa Memorial. No occasion arose for AIADMK or the party functionary to approach the court then. However, after the change in political apparatus of the state, since the newly elected government is not interested to prefer an appeal against the single judge bench order, the appellants are constrained to approach the court.

When the matter was taken up for today, the senior counsel for the appellants primarily argued that there have been no allegations in the pleadings of original writ petiioners about 'malafides' or 'public policy'. The senior counsel also added that nothing in the pleadings alleges that the acquisition is an act of colourable exercise of powers.

Even then, by jettisoning the pleadings in the writ petitions, the single judge bench took it upon itself to test the executive action on a broaded plane of constitutional and administrative law. The matter could not have been decided dehors pleadings and it reveals the wrong approach taken by the single judge bench while setting aside the land acquisition proceedings, said the counsel by relying on State of MP v. Behru Singh & Ors., 2011 7 SCC 639. He added that the decree in a case cannot be based on grounds outside the scope of pleadings by the parties.

Senior Counsel also argued that the assumption of the single judge bench about serving the 'public purpose' was also erroneous. The parties in the instant case were trying to enforce their legal rights over the property and it was not a public interest litigation. The judge noted that 'public purpose' under Section 3 (z)(a) r/w Section 2(1) of the RFCTLARR Act cannot be unilaterally determined as inclusive of 'memorial' for the former CM, and the same is open to judicial review. The counsel contended that it was the exclusive domain of the state to see if there is a public purpose or not, and the court cannot interfere with the findings made by the government with respect to 'public purpose.'

The counsel pointed out that the single judge bench ventured to determine if there is an inherent public purpose for the acquisition and conversion of J. Jayalalithaa's residence to her memorial. However, the yardstick used by the court by referring to freedom fighters cannot be said as convincing in the current scenario, he added. J. Jayalalithaa, who was the CM of Tamil Nadu for six terms, introduced novel schemes for the progress of Tamil Nadu, with emphasis on the upbringing of girl children. The construction of the memorial will help people reminisce about their great leader and the welfare measures that she undertook. It is not for the court to determine if the public expenditure that would be accrued was reasonable or not, or if the construction of two memorials were viable or not. It would practically amount to taking up the functions of the executive, added the counsel for the petitioners by placing reliance on Daulat Singh Surana & Others v. First Land Acquisition Collector, 2007 1 SCC 641 and Babu Barkya Thakur vs The State Of Bombay And Others, 1960 AIR 1203.

Regarding the filing of petition for issuance of Letter of Administration by two persons who claimed themselves as members of AIADMK, the counsel pointed out that there is nothing to suggest that they had the express approval from the party and that it's debatable. This petition had reached the Division Bench of Madras High Court which suo motu impleaded Jayalalithaa's niece and nephew and pronounced separate orders declaring J. Deepa and J. Deepak as the Class II Legal heirs and disposing off the petitions by the two persons who claimed to be party men.

With reference to the Division Bench Order, the appellant counsel also argued that it does not bind the appellants since the former mainly contained mere suggestions not to treat the property as a fully fledged memorial.

The counsel also informed the court that they had contacted the District Collector on 7^th December, 2021 and informed him that applications and proceedings pertaining to Veda Nilayam have been pending, which necessitates the maintenance of status quo. Though the appellants requested the Collector not to hand over the keys to the heirs abruptly, the heirs were allowed to take possession of the property on 10^th December.

Advocate A.L Somayaji, therefore, pleaded that his clients do not want any encumbrance or alienation of the prospective memorial, and if the court is satisfied there exists a 'prima facie' case in their favour, appropriate directions may be issued.

For Original Writ Petitioners

The counsels for J. Deepak and J. Deepa, Senior Counsels ARL Sundaresan and Satish Parasaran respectively, argued that AIADMK and C.Ve Shanmugam did not choose to get impleaded when the original proceedings were going on. According to them, the appellants were not 'persons aggrieved' under the RFCTLARR Act. Sections 3(x) Act mentions about who can be 'interested persons' in acquisition proceedings. It is not some beneficiary who is the 'person interested'. AIADMK cannot be equated with the state; they are not the acquisitioning authority nor are they the person/ entity losing the property of Late J. Jayalalithaa.

"The respondent state has accepted the judgment of the learned single judge setting aside land acquisition. The state prefers not to file an appeal against the same. At this juncture, the political party cannot go and file a writ appeal to restart the acquisition proceedings", they submitted.

Converting the residence of J. Jayalalithaa does not serve any public purpose that falls within the ambit of 2013 Act, submitted J. Deepak's counsel. Rule 6 of the RFCTLARR (Compensation, Rehabilitation & Resettlement and Development Rules, 2015 (CRRDR Rules) talks about hearing objections. The said rule mandates that the acquisitioning authority has the duty to satisfy itself that the proposed acquisition will serve the public purpose.

The submission of the appellants that the memorial is necessary for cherishing the memories about J. Jayalalithaa's life and her contributions is false, added the counsel. In this age of technology, memorials are not the sole way to remember a person, especially when there exists a memorial for Jayalalithaa on Marina Beach.

The counsel also added that though the Government has the discretion to determine Public Purpose, it does not take away the court's power of judicial review. Every case is peculiar for its factual circumstances. The counsel also added that the deciphering of public purpose in the acquisition for Chennai Metro Rail and conversion of a residence to the memorial is not similarly situated. This raises the question as to whether crores of money from the public exchequer must be spent for making people remember the contributions of Late J. Jayalaithaa. The counsel also added that every government comes up with a plethora of welfare schemes and beneficial measures and it won't justify acquiring land and setting up memorials for the leaders of every political party.

The original writ petitioners also contended that they were not issued notices at any stage of the acquisition, and hence procedural fairness was violated. According to them, Section 12 of the RFCTLARR Act mandates that the Appropriate Government shall not step into the property in the absence of the owner and without giving him/her 60 days' notice to grant the owner an opportunity of being present during the inspection. They also contended that the appointment of the Social Impact Assessment (SIA) Agency and the technical expert in the SIA Committee were not in conformity with the Rules. Moreover, the objections of the original writ petitioners were not invited during the acquisition proceedings though they registered the same without individual notices, added the counsel. With regards to the award passed to the tune of 63 crores by the Land Acquisition Officer, Rule 18(4) of the Tamil Nadu RFCTLARR Rules, 2017 states that if the compensation amount is more than Rs.8.0 crores, then the award must be passed only by the Collector after getting the prior approval of the State Government. This procedural safeguard was also violated during the acquisition proceedings according to J. Deepak.

The counsel for J. Deepa also recalled that her brother, Deepak had approached the Tahsildar, Mylapore Taluk, for obtaining a legal heir certificate to the effect that he and Deepa are the heirs of Ms. Jayalalitha. This was forwarded to Tahasildar, Guindy, who vide his proceedings dated 22.09.2017, refused to grant it and required Deepak to approach the Court. The Tahsildar even demanded the death certificate of late J. Jayalaithaa for granting legal heirship certificate.

In reply to the inadequacy in pleadings as contended by the appellants' counsel, the original writ petitioners termed the same as factually incorrect and they had stated in the writ petition about the memorial's lack of 'public purpose'. They also added that they have included in the prayer in the original writ petition about 'perverse, arbitrary, biased, illegal, untenable, smacks of malafide and colourable exercise of powers' by the respondents.

The counsel for J. Deepa also added that the list of 'public purpose' as laid down in Section 3(z) (a) r/w Section 2(1) of the Act is exhaustive and the memorial won't be consumed by the statutory provisions on 'public purpose'.

"A political party may do things under the garb of public purpose. Why should the state exchequer bleed for it?", asked the counsel for J. Deepa.

For State

Advocate General R Shunmugasundaram appearing for the state submitted that the matter related to the forced transfer of ownership of a residential house in a residential area. The aforesaid transfer can hardly impact society, and that it hardly requires a social impact assessment. As argued in the original writ petition, Advocate General iterated that unless there is actual physical displacement of those who are affected by the acquisition, the application of SIA is rendered meaningless.

As far as the non-issue of notices is concerned, except under Section 12, issuing notice is not mandatory, added the Advocate General.

Advocate General also added that AIADMK is now bound by the principle of res judicata since the party members had already approached the court before. He also added that there was no party resolution approving the second appellant to come before the court.

The Advocate General also added that the Madras High Court Division Bench as well as Justice N. Seshasaaye who set aside the acquisition proceedings disapproved the conversion of 'Vedanilayam' to a Memorial. He added that the State did not prefer an appeal against the setting aside order in the above circumstances.

Rejoinder By Appellants

In the rejoinder by Appellants, it was submitted that AIADMK is a recognised political party for which late J. Jayalalithaa was the life force and the second appellant is one of the founding members of the memorial constituted via The Tamil Nadu Puratchi Thalaivi Dr. J Jayalalithaa Memorial Foundation Act, 2020. AIADMK is a political party which is recognised by Section 4(3)(i) of the Act.

About the rebuttal of the original writ petitioners about the pleadings, the counsel added that prayer is a relief that you claim on the basis of pleadings. The plea has to specifically lay down the grounds as to why the act of the acquisition authority is malafides or colourable exercise of powers.

"It is not a 'mantra' that the moment it is mentioned, it becomes malafide... One of the counsels, Mr. Satish Parasaran or Mr. ARL Sundareshan made a remark that the conversion of residence to a memorial was for political purposes. J. Jayalalithaa died in 2016, the Chief Minister declared on the floor of the Assembly that Veda Nilayam will be converted to a memorial in 2017. The elections occurred only in 2021.", commented Senior Counsel AL Somayaji for the appellants.

Background

On 24^th November, a single judge bench of Justice N Seshasayee had allowed the petitions filed by J. Deepak and J. Deepa, both the children of Late Jayalalithaa's brother, challenging the Tamil Nadu Government order for acquiring 'Veda Nilayam' and converting it to a memorial.

It may be noted that 'Veda Nilayam' was owned by Ms J. Jayalalitha. While so, on 05^th December, 2016 she died intestate. Through a previous Division Bench Order in 2020, both the nephew and the niece were declared as Class-II legal heirs to Late Jayalalithaa and it was held that they are entitled to inherit her estate. The Division Bench had also directed the petitioner and his sister to create a Public Trust.

Though the petitioners had expressed their dissatisfaction regarding the government interfering with the matters of 'Veda Nilayam', the TN government issued the G.O.(Ms) No.180 (Tamil Nadu Development and Information (Memorials) Department), dated 05.10.2017, granting administrative sanction for acquiring 'Veda Nilayam' to constitute it as a memorial for the late Chief Minister.

Thereafter, the TN Government went ahead with the acquisition proceedings of Veda Nilayam' (the proposed site of the memorial) under The Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013 [RFCTLARR Act, 2013].

Case Title: All India Anna Dravida Munnetra Kazhagam & Another. v. J.Deepak & Ors. & Connected Matters

Case No: CMP/20834/2021