C Shivakumar/ ENS
Chennai:
The famed Buhari Hotel opposite to Chennai Central is likely to vanish
paving the way for Chennai Metro Rail implementing its project as
Madras High Court with “heavy heart” dismissed the writ petition filed
by Buhari Sons and said there is a violation of Rule of Law by the
authorities in resumption of lands in question.
Justice V Dhanapalan, after hearing the petition filed by Buhari Sons
Pvt.Ltd challenging the Government Order that directs them to vacate
the land and hand over possession of the premises to for Chennai Metro
Rail Project with larger public interest, in a common order stated
High Court is constrained to hold that though there is a violation of
Rule of Law by the authorities in resumption of lands in question.
“With heavy heart, by giving due respect to the ratio decidendi of the
Supreme Court, we are left with no other choice but to follow the same
under Article 141 of the Constitution,” the judge said.
The petitioners were tenants of the building constructed by a Trust,
namely, Rajah Sir Ramasamy Mudaliar Choultry. The bone of contention
is the 1.33 acres of land, which was given to Rajah Sir Ramasamy
Mudaliar to build a choultry in 1888. However, there was a condition
attached to it that on failure of fulfilment of the conditions said
grant of land would be given back to the government.
Interestingly, government through a order in 1958 allowed A M B Buhari
for construction of the building and for running business in the said
building pursuant to which a lease deed was executed on in January
31,1959 for a period of 20 years from the said date with an option to
renew the lease for further period. Thereafter the Government issued a
GO stating that the land is now vested in the Official Trustee under a
scheme framed by the High Court and the Buhari and Sons Pvt. Ltd.,
should apply to the High Court through the Official Trustee for
renewal of lease.
The said scheme was framed by this Court at the instance of the State
in the suit filed by the Advocate General.
The High Court in its judgement observed that the Government, while
making an order for resumption of land through its executive, did not
take any order either from the scheme court or from the Administrator
General and Official Trustee (AGOT) Court.
“Though there were attempts made by the executive to file applications
one by Chennai Metro Rail Limited and the other by District Collector,
subsequently, the same were withdrawn. So, it is clear that there was
no order made by AGOT Court, which is the court of competent
jurisdiction to permit AGOT to hand over the possession of the land in
its control to the Government, for resumption,” the court stated.
The said judicial procedure has been overlooked by the Government in
resuming the land, even of its own. This act of the Government,
bypassing an act under which the entrustment has been made, would
amount to violation of the basic structure of the Constitution of
India and the power of separation which has been demarcated could not
be usurped by one organ on its own, the judge stated..
“The Government has unfettered discretion to impose any conditions,
limitations, or restrictions in its grants but the same shall be
subject to Rule of Law and cannot be contrary to the basic structure
of the Constitution, the judge said.
“We feel it is our duty to say that the executive action taken in this
case by the State and its officer is incompatible to the basic
principle of the Rule of Law. The facts and the position in law are
that the buildings constructed on the piece of Government land did not
belong to Government, the petitioners were in possession and
occupation of the buildings and by virtue of enactments binding on the
Government, the petitioners could be dispossessed, if at all, only in
pursuance of a decree of a Civil Court obtained in proceedings
properly initiated, the court added.
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