The writ petitioner challenges the Award No.2/88-89 dated 31.8.1988 passed by the second respondent. After setting aside the same, he seeks for deletion of the lands situated at S.Nos.242/3 and 242/4 of Jagir Ammapalayam Village, Salem District to the extent of 0.16.5 hectares from the land acquisition proceedings initiated by the respondents.
2. It is the stand of the petitioner that the lands were purchased on 06.12.1980 on the advice of Indian Oil Corporation for their expansion facilities and also for parking the long distance carriage vehicles. Section 4(1) notification under the Central Act 1/1894 was issued on 25.5.1985 and the notice under
section 5A was served on the petitioner. They also filed an objection at the time of
section 5A enquiry.
Section 6 declaration was made on 03.6.1986.
3. A writ petition was filed by the petitioner in W.P.No.5654 of 1989 challenging the same. An interim stay was obtained on 25.4.1989. The writ petition came to be dismissed on 03.4.1998 and thereafter it is claimed that they were taking steps to file a writ appeal against the said order. But, however, the petitioner claims to know about an award that was passed on 31.8.1998. Since they were not served with notice, they got copies of the Award from neighbours. On going through the same, they came to know that prior approval was not obtained before passing the Award on 31.8.1998. Therefore, they filed the present writ petition after a period of two years. The same was admitted on 29.9.2000. Pending the writ petition, an interim stay was granted only regarding dispossession and the respondents were given liberty to proceed with further action.
4. On a direction from this court, a detailed counter affidavit dated 10.10.2008 was filed by the second respondent. In the counter affidavit, it is stated that the petitioner was not a pattadar and their name was not found in the revenue records. Even otherwise, their earlier writ petition being W.P.No.5654 of 19989 was dismissed. Therefore, they are estopped from raising such contentions with reference to the issues which were raised or deemed to have been raised. It was also stated that the draft award dated 31.8.1988 was sent for approval by the Special Commissioner and Commissioner for Land Administration and the same was approved on 02.9.1988. The Special Tahsildar released the Award after getting such approval.
5. In the reply affidavit, though it is claimed that the petitioner's writ appeal against the original writ petition is pending at a defective stage with SR.No.75404 of 2000, it is not explained as to why the said appeal has not been brought up for hearing even eight years after its filing. Therefore it will have to be taken that the earlier order has become final.
6. In the reply affidavit, it is stated that as contemplated under the proviso to
section 11(1), prior approval of the appropriate Government was not obtained. But, however, it is admitted that the approval was obtained from the Government on 02.9.1988. On this ground the impugned acquisition was sought to be nullified. The petitioner has two difficulties in assailing the award.
7. First was that the petitioner did not challenge the said proceedings within time and waited for two years to come to this court. Therefore, the judgment of the Division Bench of this Court in Ramalingam and others -vs- The State of Tamil Nadu and others reported in 2005 (3) CTC 1 is directly against them. In para 3 of the said decision, it is averred as follows:-
''Para 3. In these appeals, the facts are that the Award under
Section 11 of the Land Acquisition Act was given on 07.11.1996 whereas the writ petitions were filed on 28.11.1996, i.e. after the award was passed. It has been repeatedly held by the Supreme Court that no writ petition should be entertained after the award under the Land Acquisition Act has been passed -vide Tej Kumar and others -vs- State of Punjab and others 2003 (4) SCC 485; Municipal Council, Ahmed Nagar -vs- Shah Hyder Beig, AIR 2000 SC 671; Executive Engineer, Jal Nigam Central Stores Division, Uttar Pradesh -vs- Suresh Nand Jayal, 1997 (9) SCC 224; State of Tamil Nadu -vs- L.Krishnan and others 1996 (1) SCC 250. Following the aforesaid decision, we are of the opinion that the writ petition itself were not maintainable and they should have been dismissed on this ground itself."
8. In any event, with reference to the prior approval by the Government, it must be stated that the question whether such a language used, namely, ''prior approval'' would amount to the mandatory prior approval or even a post-approval can be validly made, came to be considered by the Supreme Court in the context of the Reserve Bank of India Act, more particularly, Section 29(1) of the said Act. The Supreme Court in Life Insurance Corporation of India -vs- Escorts Limited reported in (1986) 1 SCC 264 considering the distinction between special permission and general permission, previous approval or prior approval in para 63 held that: We are conscious that the word prior or previous may be implied if the contextual situation or the object and design of the legislation demands it, we find no such compelling circumstances justifying reading any such implication into Section 29(1) of the Act. Ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous Act. As to the word approval in
Section 33(2)(b) of the Industrial Disputes Act, it was stated in Lord Krishna Textiles Mills Ltd. v. Workmen reported in AIR 1961 SC 860, that the Management need not obtain the previous consent before taking any action. The requirement that the Management must obtain approval was distinguished from the requirement that it must obtain permission, of which mention is made in Section 33(1).
9. The said judgment came to be followed in a matter relating to Town Planning Act by the Supreme Court in U.P.Avas Evam Vikas Parishad and another -vs- Friends Co-op.Housing Society Limited and another reported in 1995 Supp (3) SCC 456. In paragraphs 5 and 7, it has been stated as follows:-
''Para 5. It is to be seen that the language employed therein is that the approval of the State Government is necessary. Question is whether it would be prior approval or approval given subsequent to the notification under Section 28 or declaration under Section 32 is valid in law. If prior approval would have been a precondition for further steps, the Act would have said so. This not having been done, it seems to us what is material is to obtain approval of the State Government. The reason appears to be that when the schemes have been framed, the land suitably required for effective implementation of the scheme alone should be acquired and not in excess in the guise of framing the schemes".
''Para 7. It is seen that the approval envisaged under Exception (iii) of Section 59(1)(a), is to enable the Parishad to proceed further in implementation of the scheme framed by the Board. Until approval is given by the Government, the Board may not effectively implement the scheme. Nevertheless, once the approval is given, all the previous acts done or actions taken in anticipation of the approval get validated and the publications made under the Act thereby become valid."
(Emphasis Added)
10. In the light of the above, the only objection raised by the petitioner cannot be accepted as in fact in the present case there has been an approval granted by the Government. Hence, the writ petition stands dismissed. There will be no order as to costs.
js To
1. The Secretary, Housing & Urban Development Department, Madras-9.
2.The Special Tahsildar, Land Acquisition Neighbourhood Scheme, Namakkal, Salem District