The Madras High Court on Wednesday set aside the land acquisition proceedings of former CM J Jayalalithaa's residence, 'Veda Nilayam', at Poe's Garden, Chennai. The single bench of Justice N Seshasayee has 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.
While reading out the operative part of the order, Justice Seshasayee instructed the District Collector, Chennai to hand over the property to the legal heirs, i.e, J. Deepa and J. Deepak within three weeks. In the order, the court has also clarified that the Income Tax Department can proceed as per the law to recover the arrears chargeable on the estate due from Late J Jayalalithaa.
"When the acquisition goes, the award passed by the Land Acquisition Authority goes with it. Consequently, the status quo ante has to be restored", the court noted in the order.
The court has also ordered that the compensation amount paid by the government, now deposited in the court, must be returned back with interest. While pronouncing the order, Justice N Seshasayee also mentioned that he pondered over the suitability of two memorials for the late Chief Minister. The grand memorial on Marina Beach was inaugurated earlier this year. The court said that it invoked the Public Purpose Doctrine to reach the decision.
On 27th January, 2021, the High Court had allowed the State Government to move ahead with the inauguration event of Jayalalithaa's residence 'Veda Nilayam' as a memorial. The Court H however, restrained the Government from opening the doors of the building. The petitions filed was not only pertaining to the legality of the acquisition of immovable property in 'Veda Nilayam', but to the incomplete process of acquisition of the movables as well.
It may be noted that 'Veda Nilayam' was owned by Ms J. Jayalalitha. While so, on 05th 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].
The petitioner argued that acquiring a property for converting it into a memorial does not fall within the meaning of 'public purpose' as defined in Section 2 of RFCTLARR Act. The Social Impact Assessment report had not considered the feasibility of an alternate place under Section 4(4) (f) of the Act. The award was passed by the land acquisition officer in haste before the government even considered the directions of the court, against the principles of natural justice. In the entire process including the issuance of government order for acquisition, none of the petitioners, who are legal heirs, were consulted.
The respondent state contended that the petitioners are not owners of 'Veda Nilayama' and that they only fall under the definition of 'persons interested' within the meaning of Section 3(x) of the RFCTLARR Act. They also argued that a memorial would fall under the definition of "public purpose' under Sec.2(1) of the RFCTLARR Act.
....... The Hon'ble Chief Minister was a leader of National and Global fame and conversion of her residence to a memorial would not only be a matter of pride and motivation to the people of this State but the same would also promote tourism industry by attracting visitors as it is common that tourist who visit other Countries/States would always visit such memorials and the memorials become places of tourism importance", the counter of District Collector stated.
They also argued that there is no need for any rehabilitation and resettlement package as the petitioners were not displaced by the acquisition, and that they were given opportunities to pose questions at every stage of acquisition. The petitioners' core-contention to oppose acquisition was emotional and sentimental, neither of which merit consideration when there is a public purpose for acquisition, argued the state. Even a compensation amount of Rs 67.9 crores were made available for the petitioners and deposited with the District Judge, added the counsel.
Effect of the Order of the Division Bench in the proceedings granting LoA
The court noted that both the petitioner and the respondent took a false approach while arguing on the maintainability of writ petitions. Both of them argues from a false premise that between the date of the death of Ms.J.Jayalalitha and the date of the order of the Division Bench approving the petitioners as Class-II legal heirs, the ownership of the property remained suspended.
Interestingly, the court also noted that the petitioners opted for the word 'ownership' in their arguments while the respondents preferred vesting of 'Constitutional right to property'.
Citing the jurisprudential takes of Austin, Salmond and Prof. Holland, the court observes
"Where a property possesses an inherent character to outlive the death of the person who has held the right over it, then that right cannot exist in a vacuum. It needs to vest in a person, since ownership is the relationship that jurisprudence builds between a person and the right, that relationship cannot hang in a state of suspense."
The court further observes regarding the concept of succession that:
"It can now be derived that where a right is heritable, ownership is neither destroyed nor does it disappear, and that which disappears in one person reappears in another. And the moment succession opens Article 300 A of the Constitution steps in to bring the right so vested within its protective umbrella."
The court then refers to many judgments including Kerala High Court Division Bench judgment in Cherichi v. Ittianam [AIR 2001 Kerala 184], approved by the Supreme Court in Crystal Developers v Asha Lata Ghosh [(2005) 9 SCC 375] and in FGP Ltd. v. Saleh Hooseini Doctor [(2009) 10 SCC 223]. According to the court, these judgments invariably establish that an executor derives his title and authority from the Will of his testator and not from any grant of probate. Section 213 of the Indian Succession Act does not vest any right or rather any substantive right in anybody other than regulating the mode of proving a will, that is, procedure.
Adding that the law is settled on the issue, court further says that 'Veda Nilayam' got vested in the legal heirs of Jayalalithaa upon the instance of her death itself. The Madras High Court Division Bench order was merely as a declaration of status of the legal heirship of Deepak and Deepa in law, the court noted in the order.
The court observed that the Division Bench was only required to identify the right person in law who is entitled to be issued with the Letter of Administration. The directions given by the court, including the creation of a public trust by the petitioners, are at best obiter dicta. The proceedings before the Division Bench does not involve the legality of the acquisition of 'Veda Nilayam', though in passing, it might have been referred to, clarifies the High Court in the order.
Effect of Sec.64 of the RFCTLARR Act
The Government's argument that the court shouldn't invoke Article 226 since the petitioners have an alternate remedy under Section 64 of RFC LTARR Act was also held to be misconstrued by the court.
"Sec.64 neither expressly nor impliedly empowered the authorities to sit in appeal over an allegation of colourable exercise of power of eminent domain and to determine if the acquisition involves a public purpose within the meaning and framework of the Act. That which is not statutorily enabled is legally prohibited" Justice Seshasayee recorded in the order.
2. Constitution of Memorial And Public Purpose Doctrine
About the eminent domain to reassert its dominion over any portion of the soil of the State including private property without its owner's consent for a public good founded on public exigency, the court observes:
"What the Government has, and what the Court requires to consider is the referential definition of 'public purpose' found in sec.2(1) of the Act."
An acquisition for establishing a memorial is not expressly enabled in the definition of 'public purpose' as in Sec.2(1) of the Act. On this aspect, the court observed that the acquisitions can be made for purposes that are not made evident by the definition clause of Section 2(1). It cannot be restricted to infrastructure alone, but it can be for diverse purposes.
While answering the legitimacy of public purpose in converting Veda Nilayam to a memorial, relying on State of Bombay v. R.S. Nanji (1956), the court notes:
"The position is that the view taken by the Government on what constitutes public purpose (in acquiring a land) will only be a "prima facie one", the ultimate arbiter will be the Courts."
On the issue at hand, i.e, the correlation of a memorial and the public purpose it serves, the court held:
"It is not determined by a mere intellectual exercise in statutory interpretation if a definition is an inclusive definition or in ascertaining if a memorial can be brought within the elastic limits of an inclusive definition under Sec2(1), or about the Government's power of acquisition, but by its organic content - its usefulness to the public."
Expanding the scope of public purpose, the court notes that the mere demonstration of value and indispensability of the leader to the political party or any organisation does not justify the utilisation of public money; it must be demonstrated that the said person/ persons have dedicated themselves to the service of the society or even a section thereof, but along the lines of the Constitutional values.
On another aspect, the court records in its order that a memorial has already been built for Late J. Jayalalithaa using Rs 80 crores of public money at Marina Beach.
"The Marina memorial does not involve any acquisition, but does it not inform that a memorial indeed has come up for Ms.Jayalalithaa? 'Veda Nilayam' is only a few kilometers away from the Phoenix-memorial. Is it not one memorial too many? What is the inspirational story that 'Veda Nilayam' may provide which the Marina memorial does not?"
On the penchant of government to make another memorial for the same chief minister, the court noted that:
"In a State where the substantial number of its populace are struggling for a dignified life under the Constitution, for whom Part III and Part IV of the Constitution are yet to become relevant, the Court may not remain insensitive and play Dhridarashtra when the Government decides to divert crores of public money mindlessly."
Relying on Rajeev Suri Vs Delhi Developmental Authority [2021 SCC Online SC 7] ( Central Vista case), the High Court notes that the State Government has not been able to demonstrate public expenditure – public benefit nexus with regards to 'Veda Nilayam' unlike the Central Government in Central Vista Construction.
3. Procedural Lapses
As far as the inaction regarding Social Impact Assessment, the court observed that it was non-consequential since it only involved a change of use of the building – from a residence to a memorial that hardly has any societal impact per se. The court also expressed its surprise in the Tahsildar denying the issuance of a legal heir certificate, upon which the petitioners were forced to approach the court for LoA.
Further, observing the lapses of government in the stages for the process of acquisition envisaged under RFCTLARR Act, 2013, the court added:
"…the State has a lot to explain the way it handled the procedure in the instant case, and if it was fair and reasonable in procedural compliance mandated by the statute."
Accordingly, the court allowed all the three writ petitions before it and issued directions to the authorities that ought to be undertaken to post the quashing of acquisition proceedings.
[With Inputs From Sparsh Upadhyay]
Case Title: J.Deepak Vs The Secretary To Government And 3 Others & Connected Matters
Case No: WP/9285/2020 (Land Acq.)