The matter arises under the Land Acquisition Act, 1894 (hereinafter referred to "as the Act"), the challenge is to a notification issued under Section 4(1) and the declaration under Section 6 of the Act, both under a common order in G.O.Ms.No.527, Transport Department dated 01.09.1976 and for consequential direction to the respondent to surrender possession of the land in survey No.301/1 and 302/2, Aruppukottai village, Virudhunagar District and pay damages for use and occupation. The case of the petitioner is that his father late T.Ramasamy Naicker purchased various properties in Aruppukottai Village on different dates, when the villages were under the Ramanathapuram Jamin. The properties, which are relevant for the purpose of this case were landed properties comprised in survey No. 301/1 (0.39 acres) 301/2 (0.45 acres) and 301/3a (2.02 acres) in all measuring a total extent of 2.86 acres in Aruppukottai village.
Background facts:
2. That pursuant to a family partition dated 10.05.1958, these properties and other lands were allotted to the petitioner's share. According to the petitioner, he continued to be possession and the enjoyment of the said properties. It is further stated that after the Zamins Abolition Act, the land in survey Nos.301/1 and 301/2 were wrongly registered as 'assessed waste dry'. According to the petitioner, this mistake was due to wrong correlation of pymash numbers and despite this wrong correlation the name of the petitioner's father was found entered for one Survey No. and his vendor's name was entered in the other survey No.
3. The petitioner filed a petition before the Director of Survey and Settlement for grant of Patta and based on such petition a preliminary enquiry was conducted by Settlement Deputy Tashildar. The case stood transferred on 28.03.1978 to the file of the Assistant Settlement Officer, Madurai for conducting a detailed enquiry. It is stated that after conducting enquiry the Assistant Settlement Officer by order dated 07.08.1978 held that the petitioner is entitled for Ryotwari patta. The Tashildar filed a revision against the said order and on revision by order dated 16.08.1979, the revisional authority set-aside the order of the Assistant Settlement Officer, Madurai, dated 07.08.1978. Aggrieved by the said order the petitioner filed R.P.No.15 of 1980, before the Director of Survey and Settlement and by order dated 21.10.1980, the order of the settlement officer was set-aside and the matter was remanded to the original authority for fresh consideration. On remand the Assistant Settlement Officer found that the lands have to be included in the holdings of the petitioner by an order dated 15.03.1982. The revision petition filed by the Tashildar against this order was dismissed by the Director of Survey and Settlement by order dated 06.12.1982 against the said order, the Tashildar filed further revision to the Special Commissioner and Commissioner of Land Administration, who passed the order dated 31.07.1986 rejecting the claim of the petitioner. This order came to be challenged by the petitioner before this Court in W.P.No.11205/1986, the Writ Petition was allowed by an order dated 19.01.1990 thereby restoring, the order passed by the Director of Survey and Settlement dated 06.12.1982, which affirmed the order of the Settlement Officer dated 15.03.1982, by virtue of which the petitioner was entitled for Ryotwari Patta, in respect of the lands in Survey Nos.301/1 and 301/2. W.A.No.1145/91 came to be filed against the order in the said writ petition, which was also dismissed by order dated 10.06.1998. Therefore, the matter relating to the grant of Ryotwari Patta in favour of petitioner attained a finality.
4. During the pendency of these proceedings, the impugned notification under
Section 4(1) and Section 6 of the Act came to be issued on 01.09.1996 stating that the Government are satisfied, the lands comprised in Survey Nos.301/1, 301/2 and 301/3A measuring a total extent of 2.86 acres are required for a public purpose for location of the Bus Depot for Pandian Roadways Corporation Limited. The notification under
Section 4(1) and the declaration under Section 6 came to be issued in a common Government order in G.O.Ms.No.527 Transport Department dated 01.09.1996, since the Government invoked their power under Section 17 (4) of the Act stating that the lands are urgently required for the said public purpose. In so far as the land in survey No.301/3A, since the patta stood in the name of the petitioner, an award was passed in Award No.1/1981 dated 12.01.1981 by the Sub Collector, Aruppukottai by fixing the compensation at Rs.66,666/- per acre, since this was not accepted by the petitioner, the matter was referred to the Sub-Court, Sivaganga under Section 18 of the Act in LAOP No.43/81 and by order dated 26.10.1984, the compensation was enhanced and re-fixed at Rs.700 per cent and such order of the reference Court was confirmed by this Court in A.S.No.1174/86 dated 26.02.2001 and by virtue of which the petitioner was paid compensation for the extent of 2.02 acres in Survey No. 301/3A at the rate of Rs.700 per cent.
5. The issue in the present writ petition relates to the lands covered in the other two Survey Nos, which was also subject matter of the same acquisition proceedings, namely Survey Nos.301/1 & 301/2. The case of the petitioner is that no award has been passed in respect of those two survey nos and after W.P.No.11205/86 was allowed, a legal notice dated 14.02.1990, was issued by the petitioner to the respondents calling upon them to surrender possession of the lands or pay the then market value within two months from the date of receipt of notice. This demand was reiterated after the dismissal of the Writ Appeal on 28.05.1999 followed by reminders dated 07.06.1999, 26.07.1999 and 27.12.1999. Therefore, the petitioner would contend that till date the respondents have not surrendered the lands nor passed an award and in view of the limitation prescribed under Section 11A of the Act, the land acquisition proceedings have lapsed. On the above stated grounds, the writ petition has been filed.
Contentions:
6. Mr.M.Venkatachalapathy, learned senior counsel appearing for the petitioner would contend that the issue relating to the grant of Ryotwari Patta was decided in favour of the petitioner on 19.01.1990, when the W.P.No.11205/86 was allowed. It is further submitted that no award was passed even after the order made in the writ petition and the demand made by the petitioner to pay the market value of the property prevailing on the said date was not complied with. Even after the dismissal of the writ appeal filed by the Government on 10.06.1998, the respondents failed to act on the representations made by the petitioner on 14.02.1990, 28.05.1999, 07.06.1999, 26.07.1999 and 27.12.1999. Having failed to either surrender the land or pay the market value of the property, the impugned notifications have to be tested as to whether they have complied with the requirements under the statute. If, that is considered, since no award has been passed within the period of two years, it has to be necessarily held that the notification issued under
Section 4(1) and the declaration under Section 6 have lapsed. It is further contended that the Revenue Tashildar by reply dated 10.05.1999 had in fact stated that proceedings would be taken for acquiring the land after receipt of a proper report from the Pandian Roadways Corporation. Therefore, the learned senior counsel would submit that the respondents themselves were aware that the proceedings had lapsed and if at all the land is required fresh proceedings have to be initiated. The learned senior counsel reiterated the various steps taken by the petitioner to secure the Ryotwari Patta in his favour, which facts have been stated above. The learned senior counsel appearing for the petitioner would submit that the petitioner by representation dated 12.03.2002 had brought to the notice of the District Collector that the property in question is an urban property located in the hot of the town and used for industrial purpose and requested that the market value of the property may be fixed at Rs.114.70 per sq. feet, besides solatium and damages. The claim for damages was made, since the 4th respondent was using the property for 25 years. It was also mentioned in the said representation that if the 4th respondent is not willing to pay the market value of the land, the petitioner is ready to take back the land. The petitioner relied upon five sale deeds in respect of properties which were sold between 1997 and 2001 and such properties were situated within a distance of about 180 feet to 200 feet away from the acquired land. The learned senior counsel would submit that this representation also was not considered by the respondents. The learned senior counsel would placed reliance on the following decision in support of his contention that the land acquisition proceedings have lapsed.
(i)Padmasundara Rao (Dead) and others, Vs. State of T.N. And others [AIR 2002 SC 1334]
(ii)R.Rajamani Vs. The Government of Tamil Nadu and others [2007 WLR. 538]
7. Finally, the learned senior counsel would submit that since the land in question has already been utilised by the erstwhile Pandian Corporation and presently State Transport Corporation, it is always open to the Government to issue a fresh notification under
Section 4(1) of the Act.
8. Per contra, Mr.R.P.Kabilan, the learned Additional Advocate General appearing for the respondent would contend that the properties comprised in three Survey Nos. were subject matter of acquisition and the petitioner had accepted the compensation, in respect of the land comprised in Survey No.301/3A and received the amount calculated at Rs.700 per sq. feet and that point of time, the petitioner did not raise any objection in respect of the other two Survey Nos. which are presently covered in this writ petition. Therefore, when the matter was referred for submitting a proposal for payment of compensation, the respondents readily agreed to pay the same, market value as in the earlier case at the rate of Rs.700 per cent together with solatium and interest together with additional interest at 15% from 15.04.1978 to 14.08.2009 and an offer was given to the petitioner to accept a total compensation (inclusive of the 15% interest) at Rs.5,99,178/- for the total extent of 0.84 acres. However, the petitioner failed to accept such proposal. Learned Additional Advocate General would further contend that the petitioner was keeping silent for over twenty years and is now attempting to unsettle, settled matters. It was submitted that the valuation of the property was sought for from the Revenue Tashildar Arrupukottai and by certificate dated 02.12.2008, the valuation was given as Rs.1,73,000/. Therefore, the learned Additional Advocate General would submit that the valuation as claimed by the petitioner is not correct market value and their contention that the property is valid at Rs.4301 per sq. metre is erroneous. Further, the references made by the petitioner, in respect of certain other documents, which were registered between October 1997 to February 2001, it was submitted that such value cannot be accepted, since there is no material to establish the nature of such land and such other factors, which are required to be taken note of while fixing the market value of the property.
9. Finally, the learned Additional Advocate General would submit that the requisition body namely, the Tamil Nadu State Transport Corporation having now accepted to pay compensation, the correct market value of the property shall be the rate prevailing on the date of the 4(1) notification, which was fixed at Rs.700 per cent and also accepted by the petitioner while receiving the compensation in respect of Survey No.301/3A and the said amount will be a reasonable compensation for the property acquired and prayed for dismissal of the writ petition.
10. Having considered the submission of the learned senior counsel appearing for the petitioner and learned Additional Advocate General for the respondents, the points which arises for consideration are as follows:-
(i) Whether, the notification issued under
Section 4(1) and the declaration issued under Section 6 of the Act, both by a common Government order in G.O.Ms.No.527, Transport Department dated 01.09.1976 stood lapsed, since no award was made under
Section 11 of the Act within a period of two years from the date of publication of the declaration?
(ii) What relief are the parties entitled to?
11. Before going into the merits of the contention raised it is to be noted that attempts were made to amicably resolve the issue, since the requisition body agreed to pay compensation to the petitioner, this Court by order dated 22.07.2009 also directed the matter to be placed before the lokadalat to an effect a settlement, but however, it is reported by the learned senior counsel on either side that no amicable settlement had been arrived at and therefore, it has become necessary for this Court to decide the matter on the question of law raised.
Discussion:-
12. The then State Transport Corporation by the requisition dated 03.08.1976, requested the Collector for acquiring the lands comprised in Survey No.301/1, 301/2 & 301/3A of Aruppukottai Taluk & Village, Virudhunagar District for the formation of Bus Depot for Pandian Roadways Corporation and also requested to invoke the emergency provision under the Act. Pursuant to the said request, the impugned notifications came to be issued by a common Government order in G.O.Ms.No.527 dated 01.09.1976 and published in the Tamil Nadu Government Gazette on the same date. The proceedings which were pending before the settlement authorities under the provisions of the Tamil Nadu Estates (Abolition and Conversation into Ryotwari ) Act have been set out in the previous paragraph and therefore they are not repeated. From the facts set out, it is established that the property in question was allotted to the petitioner in a family partition on 18.09.1958 and a request was made for issuance of Patta and proceedings were initiated by the petitioner and after exhausting the remedies available under the Estates Abolition Act, the claim for Patta made by the petitioner was upheld by order of this Court in W.P.No.11205 of 1986 dated 19.01.1990. Immediately, thereafter, the petitioner had issued a legal notice on 14.02.1990, calling upon, the respondents 2 & 3 herein to surrender possession of the land in Survey Nos.301/1 & 301/2 or pay the then market value within two months from the date of receipt of the notice. The respondents 2 & 3 did not comply with the demand, but the respondents preferred an appeal in W.A.No.1145/91 against the order of the writ petition. This appeal was dismissed by the Hon'ble Division Bench by order dated 10.06.1998. After the disposal of the writ appeal, the petitioner revived his demand made earlier and issued a notice on 19.08.1999, stating that in view of the Judgment in the writ appeal, the respondents have to surrender possession of the land, since no award was passed under the Act and called upon the respondents to surrender possession or pay the then prevailing market value within two months. This notice was sent through the petitioner's counsel and a reply was received by their counsel from the Revenue Tashildar, Aruppukottai, who by his reply dated 10.05.1999 stated that as and when the proposal is received from the Pandian Roadways Corporation steps would be taken to initiate land acquisition proceedings. Thus, the acquiring body was aware that no valid acquisition proceedings subsisted in the eye of law and if at all the land was still required fresh steps have to be initiated. Since, no further action was taken on the legal notice dated 19.08.1998, the petitioner had sent reminders on 10.05.1999, 28.05.1999, 07.06.1999, 26.07.1999 and 27.12.1999, having not been favoured with any reply much less a favourable reply, the petitioner had approached this Court by filing this writ petition seeking to quash the land acquisition proceedings as they stood lapsed.
13. In terms of
Section 11 A of the Act, the Collector shall make an award under
Section 11 within a period of two years from the date of publication of the declaration and if no award was made within that period the entire proceedings for the acquisition of the land shall lapse. The proviso to Section 11A deals with cases, which relates to declaration, which has been published before the commencement of the Land Acquisition (Amendment Act), 1984. The explanation to the
Section 11 A states that in computing the period of two years the period during which any action or proceedings to be taken in pursuance of the declaration under Section 6 is stayed by an order of the Court such period shall be excluded. Though in the present case, there was no order of stay, staying the Section 6 declaration, even assuming that the proceedings initiated under the Ryotwari settlement Act was an indirect bar to proceed further, the said proceedings culminated after the writ petition in W.P.No.11205/1986 came to be allowed by this Court on 19.01.1990. Thereafter, the writ appeal filed by the state was also dismissed on 10.06.1998. Therefore, even assuming that these proceedings operated as a bar to make an award under
Section 11, on and after 10.06.1998, there were no proceedings pending which either directly or indirectly had a bearing on the acquisition proceedings. In fact several notices have been sent by the petitioner calling upon the respondents to surrender possession or pay the then prevailing (at the time of notice) market value for the property and since there was no action on the part of the respondents, the petitioner approached this Court by filing the above writ petition.
14. The Hon'ble Supreme Court in Chairman, Indore Vikas Pradhikaran V. Pure Industrial Coke & Chemicals Ltd and others [(2007) 8 SCC 705] while interpreting the provisions of the M.P. Nagar Tatha at Gram Nivesh Adhiniyam, which provided for development and administration of Special areas to make provision for compulsory acquisition of land required for the purposes connected with the said matters, while interpreting the said Act held as follows:-
"56. Property, while ceasing to be a fundamental right would, however, be given express recognition as a legal right, provisions being made that no person shall be deprived of his property save in accordance with law.
Interpretation of Act
57. The Act being regulatory in nature as by reason thereof the right of an owner of property to use and develop stands restricted, requires strict construction. An owner of land ordinarily would be entitled to use or develop the same for any purpose unless there exists certain regulation in a statute or a statutory rules. Regulations contained in such statute must be interpreted in such a manner so as to least interfere with the right to property of the owner of such land. Restrictions are made in larger public interest. Such restrictions, indisputably must be reasonable ones. (See Balram Kumawat V. Union of India [(2003) 7 SCC 628]; Krishi Utpadan Mandi Samiti V. Pilibhit Pantnagar Beej Ltd [(2004) 1 SCC 391] and Union of India V. West Coast Paper Mills Ltd [(2004) 2 SCC 747] ). The statutory scheme contemplates that a person and owner of land should not ordinarily be deprived from the user thereof by way of reservation or designation.
58. Expropriatory legislation, as is well-known, must be given a strict construction.
59. In Hindustan Petroleum Corporation Ltd. V. Darius Shapur Chennai [(2005) 7 SCC 627] construing Section 5-A of the Land Acquisition Act, this Court observed; (SCC pp. 634-35. para 6-7) "6. It is not in dispute that Section 5-A of the Act confers a valuable right in favour of a person whose lands are sought to be acquired. Having regard to the provisions contained in Article 300-A of the Constitution, the State in exercise of its power of 'eminent domain' may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid.
7. Indisputably, the definition of public purpose is of wide amplitude and takes within its sweep the acquisition of land for a corporation owned or controlled by the State, as envisaged under sub-clause (iv) of Clause (f) of Section 3 of the Act. But the same would not mean that the State is the sole judge therefor and no judicial review shall lie. (See Jilubhai Nanbhai Khachar V. State of Gujarat [1995 Supp (1) SCC 596]) It was further stated: (SCC p. 640. para 29).
"29. The Act is an expropriatory legislation. This Court in State of M.P V.Vishnu Prasad Sharma[AIR 1966 SC 1593] observed that in such a case the person of his land without consent. [See also Khub Chand V. State of Rajasthan [AIR 1967 SC 1074] and CCE V. Orient Fabrics (P) Ltd [(2004) 1 SCC 597] There cannot, therefore, be any doubt that in a case of this nature due application of mind on the part of the statutory authority was imperative."
15. The Hon'ble Supreme Court in Devindar Singh Vs. State of Punjab and Others, [2008 1 SCC 728] held as follows:-
"42. It is furthermore trite that the Land Acquisition Act is an expropriatory legislation. (See Hindustan Petroleum Corporation Ltd. V. Darius Chemicals Ltd [(2007) 8 SCC 705].
43. Expropriatory legislation, as is well known, must be strictly construed. When the properties of a citizen are being compulsorily acquired by a State in exercise of its power of eminent domain, the essential ingredients thereof, namely, existence of a public purpose and payment of compensation are principal requisites therefore." (emphasis supplied) Therefore, deprivation of property without payment of reasonable compensation is illegal and amounts to a serious infringement of a legal right which continues exists, though the right to property ceased to be a fundamental right and it necessarily follows that such deprivation of legal right shall be strictly in accordance with law.
16. Bearing the above legal principle in mind, if the present case is taken into consideration, however hard it may be on facts, the reality is that no award has been passed within the stipulated time limit of two years, under Section 11-A of the Act. Having failed to pass an award within a time stipulated it necessarily follows that the proceedings, thus for initiated should lapse.
17. The Hon'ble Supreme Court in Padmasundara Rao Vs. State of Tamil Nadu [AIR 2002 SC 1334] was considering a question that whether after quashing of notification under Section 6 of the Act, fresh period of one year is available to the State Government to issue another notification under Section 6, while answering the question, the Hon'ble Supreme Court held as follows:-
"10. It may be pointed out that the stipulation regarding the urgency in terms of S. 5-A of the Act has no role to play when the period of limitation under S. 6 is reckoned. The purpose for providing the period of limitation seems to be avoidance of inconvenience to a person whose land is sought to be acquired. Compensation gets pegged from the date of Notification under
S. 4(1) Section 11 provides that the valuation of the land has to be done on the date of publication of Notification under
S. 4(1).Section 23 deals with matters to be considered in determining the compensation. It provides that the market value of the land is to be fixed with reference to the date of publication of the Notification under
S. 4(1) of the Act. The prescription of time limit in that background is, therefore, peremptory in nature. In Ram Chand and others V. Union of India and others (1994 (1) SCC 44), it was held by this Court that though no period was prescribed, action within a reasonable time was warranted. The said case related to a dispute which arose before prescription of specific periods. After the quashing of declaration, the same became non est and was effaced. It is fairly conceded by learned counsel for the respondents that there is no bar on issuing a fresh declaration after following the due procedure. It is however, contended that in case a fresh notification is to be issued, the market value has to be determined on the basis of the fresh Notification under
S. 4(1) of the Act and it may be a costly affair for the State. Even if it is so, the interest of the person whose land is sought to be acquired, cannot be lost sight of. He is to be compensated for acquisition of his land. If the acquisition sought to be made is done in an illogical, illegal or irregular manner, he cannot be made to suffer on that count."(emphasis supplied)
18. The Hon'ble Division Bench of this Court in R.Rajamani Vs. The Government of Tamil Nadu and others [2007 WLR 538] was considering a question regarding the applicability of the provision of contained under Section 11-A of the Act. After relying upon various decision of the Hon'ble Supreme Court including the decision in Padmasundara Rao case, as referred above, held as follows:-
"15. From the materials on record as well as the submissions made by the counsels for the parties, it is apparent that publication regarding declaration under Section 6 was made on 09.02.1987. As required under Section 11-A, award has to be made within two years from the date of publication of the declaration. It has been interpreted by the Supreme Court in (2003) 6 Supreme 410 (Bihar State Housing Board V. State of Bihar & Others) that the expression "date of publication of declaration" appearing Section 11-A has to be the last dates out of 3 modes of publication contemplated under Section 6. It is not disputed that 09.02.1987 is such last date. Therefore, the award has to be made in normal course on or before 09.02.1989 by calculating the period of two years from 10.02.1987. The award has been actually made on 17.09.1993. Therefore, the award has been 4 years, 7 months and 8 days after the stipulated period. From this 4 years, 7 months and 8 days, the period during which the said order was operative by virtue of the order of Court is required to be excluded by virtue of Explanation to Section 11-A. Such stay order was actually operative for a period of 32 days from 20.02.1987 till 23.03.1987, 4 years 130 days between 12.08.1987 to 19.1.1991 and 55 days for the period between 20.04.1992 and 13.06.1992 i.e., for a total period of 4 years and 217 years. Four years period added to 09.02.1989 brings it up to 09.02.1993. From 10.02.1993 till 17.09.1993, the total period available is 220 days. The Government has taken a period of 220, out of which 217 days is covered under the stay. It thus appears that the award has been made three days beyond the stipulate period by excluding the period during which stay order was operative by virtue of order of the Court.
16. In view of the peremptory language under Section 11-A and in view of the decision of the Supreme Court already noticed, it is thus apparent that the land acquisition proceedings got lapsed by virtue of the fact that the award has not been made within the stipulated period of two years plus the period during which stay was by virtue of the order passed.
17. In such view of the matter, the writ appeals are bound to be allowed and the land acquisition proceedings are hereby quashed. However, since the quashing of the land acquisition proceedings is on account of the fact that the award has not been passed within the period of limitation, it would be always open to the concerned authority to take steps for acquisition of the land. This order will not stand in the way for acquiring the land in accordance with appropriate law, if there is necessity. There would be no order as to costs."(emphasis supplied) Conclusion:-
19. In the facts and circumstances of the present case admittedly, there was no order of stay operating on the proceedings and therefore in the absence of an award being passed under
Section 11, within the time limit stipulated under Section 11-A, it is thus apparent that the land acquisition proceedings got lapsed. However, since the proceedings are quashed on account of the fact the award has not been passed within the period of limitation, it would always be open to the appropriate authority to issue a fresh notification under
Section 4(1) even if may be stated to be a costly affair for the state, as held by the Hon'ble Supreme Court in Padmasundara Rao case as referred above, the interest of the person whose land is sought to be acquired cannot be lost sight of and he has to be compensated and if there is a illegality or irregularity in the acquisition proceedings, the land owner cannot be made to suffer on that count.
20. For the above reasons the writ petition is allowed as prayed for subject, however to the liberty granted to the respondents to issue a fresh 4(1) notification as indicated above. No costs.
18.12.2009 Index :Yes/No Internet:Yes/No pbn To
1. The State of Tamilnadu Rep. by its Secretary to Govt.
Transport Department Fort St. George, Chennai 9.
2.The District Collector Virudhunagar District Virudhunagar 626 101.
3.The Revenue Divisional Officer/ Land Acquisition Officer Aruppukkottai 626 101 Virudhunagar District.
4.The Managing Director Pandian Roadways Corporation Now known as State Transport Corporation Zone Madurai.
T.S.SIVAGNANAM J, pbn Order in W.P.No.3753 of 2000 18.12.2009