No 'Public Purpose' For Veda Nilayam Acquisition And Conversion To Memorial: Madras High Court Dismisses AIADMK Plea

While dismissing the appeals preferred by All India Anna Dravida Munnetra Kazhakam (AIADMK) and former AIADMK Minister C.Ve Shanmugam, Madras High Court has also held that AIADMK wrongfully equated itself with the appropriate government in acquisition proceedings.

A Division Bench of Justice Paresh Upadhyay and Sathi Kumar Sukumara Kurup held that the state's land acquisition proceedings were riddled with procedural irregularities, concurring with the findings of the single judge bench setting aside the acquisition.

The court answered three questions framed by the bench itself while dismissing the appeal and closing the civil miscellaneous petition. These questions were:

• Whether the single judge bench was correct in holding that the acquisition proceedings were illegal under the Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013 (RFCTLARR Act) and related Rules
• Whether public purpose is served under Section 3 (za) r/w Section 2 (1) of the Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013 (RFCTLARR Act) and related Rules by converting the residence into a memorial for late J. Jayalalithaa, and if the answer is yes,
• Whether the 'appropriate Government' under the Act of 2013 can still be directed to continue with the said acquisition proceeding, by initiating and completing that exercise afresh, in due compliance of the procedure contemplated under the Act

The court has comprehensively answered the above questions. On the first issue, the court held that the appellants have failed in raising any substantial challenge against the inferences made by the single judge bench about procedural irregularities. Though the acquisition was of a private residential property, the state didn't even consider the status of writ petitioners as owners of the property. However, since the acquisition and not the ownership is in question before the current bench, the court answered that the procedural irregularities explained by the single judge bench with regards to the 2013 Act and Rules will hold true.

On the second question, reference was made to the scope and ambit of 'Public purpose' under the Land Acquisition Act, 1894 vis-à-vis the 2013 RFCTLARR Act. The expression 'Public Purpose' in the 1894 Act was accorded a wide interpretation which was redefined in the 2013 Act to restrict the scope for acquisition of land by state for infrastructural projects and general public, the court underscored.

Referring to Section 3(za) of the RFCTLARR Act, the court added that the object that is sought to be achieved must be ascertained by reading the former conjointly with Section 2(1) of the Act.

"On conjoint consideration of the above, what transpires is that, the legislature had thought it proper not to have that wide a definition of the word 'public purpose' as it stood in the Land Acquisition Act of 1894 for various reasons and therefore in the RFCTLARR Act of 2013 it is narrowed down and made precise, what 'public purpose' would mean. If the acquisition in question is examined, keeping in view the 'objects and reasons' and the definition of the 'public purpose' in the Act of 2013, in the facts of this case, we are unable to bring the acquisition of the property in question within four corners of 'public purpose' envisaged under Section 3 (za) of the Act of 2013 read with any of the clauses under sub-section (1) of Section 2 of the said Act".

Since the court had already held that there is no public purpose in the acquisition and conversion of Veda Nilayam to a memorial, the issue of whether the government could proceed with the acquisition proceedings afresh once again was rendered irrelevant. However, the court went on to note that the court had previously posed a question as to why neither of the appellants approached the single judge bench who was considering the matter earlier.

The court noted that AIADMK answered the above question by taking the stand that there arose no occasion for AIADMK to approach the court since the previous government was satisfactorily pursuing the matter back then.

The stand taken by AIADMK indicates that the political party misconstrued itself as the relevant/ appropriate government under Section 3(e) (i) of RFCTLARR Act, the court observed. It also added that AIADMK attempted to reduce its status to that of a requiring body under Section 3(zb) of the Act which was outside the scope of the said Act. The court concluded that the government of AIADMK exercised its powers under the Act by equating itself with the political party in power.

"...the first appellant which is a political party, which by the very stand it has taken (as noted above) has reduced itself to the status akin to that of the 'Requiring Body' as defined under Section 3(zb) of the Act is heard contending that, 'public purpose' as defined under Section 3(za) read with section 2(1) of the RFCTLARR Act of 2013 would be served by acquiring a private residential property for being converted into a memorial, against the wish of the owners thereof, that too when the 'appropriate Government' under the Act is not willing to do so. According to us, it would be neither legal nor proper to give any such direction", the court added.

Given that there is no public purpose, the court opined that when the current appropriate government was unwilling to proceed with the acquisition and conversion, AIADMK could not have construed itself as a requiring body under the Act for making a memorial for their former leader.

The court accordingly held that the directions sought by AIADMK in the writ of mandamus filed under Clause 15 of the Letters Patent Act cannot be granted.

Background

While granting leave for filing the third-party appeal , the court had held that there was no doubt about the locus of the appellants, Anna Dravida Munnetra Kazhakam (AIADMK) and former AIADMK Minister C.Ve Shanmugam.The court observed that even if the subject matter is the same, i.e, Veda Nilayam, rights on the same can be different. For the legal heirs who are the original writ petitioners, it's the property they have inherited while it is the memorial and its construction for AIADMK. The court also clarified that it doesn't mean that AIADMK is entitled to any relief in certain.

However, the court asked the counsel for AIADMK, A.L Somayaji, the reason as to why they didn't implead themselves as respondents before the single judge who set aside the acquisition of Veda Nilayam for transforming it into a memorial for late J. Jayalalithaa. 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 also underscored then that the requiring body under Section 95 of the Act and the elected government are not the same.

Given that the appellants have locus, the primary question before the court was whether they 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).

Arguments Raised By Parties

During the previous hearing, Senior counsel for AIADMK for the appellants primarily argued that there have been no allegations in the pleadings of original writ petitioners 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.

While setting aside the acquisition, Justice N. Seshasayee had noted that noted that 'public purpose' under Section 3 (za) 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 for AIADMK 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.' 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.

According to the Senior Counsels appearing for J. Deepak and J. Deepa, , 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.

It was further contended by the original writ petitioners that 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. Further, even though the Government has the discretion to determine Public Purpose, it does not take away the court's power of judicial review. The counsel for J. Deepa also added that the list of 'public purpose' as laid down in Section 3(za) r/w Section 2(1) of the Act is exhaustive and the memorial won't be consumed by the statutory provisions on 'public purpose'.

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 (SIA). 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.

Acquisition Proceedings Of Veda Nilayam

'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.

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.

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

Case No: CMP/20834/2021

Citation: 2022 LiveLaw (Mad) 4