The defendants are the appellants herein. The plaintiff, who is the respondent herein, filed a suit seeking a direction to the defendants by way of Mandatory Injunction to pass an Award in respect of the suit properties which belong to the plaintiff and acquired by the defendants in accordance with the provisions of the Land Acquisition Act.
2. It is contended by the plaintiff Partnership Firm that the suit properties originally belonged to Gnanamoorthy and Arthanathan, the partners of the plaintiff Partnership Firm. Later on, the suit properties were brought into the stock of the Firm after the formation of the Partnership Firm in the year 1972. Thus the plaintiff has become the absolute owner of the suit property. The 2nd defendant effected Notification under
Section 4(1) of the Land Acquisition Act 1894 for the purpose of laying East Coast Highway. The 2nd defendant made a declaration under Section 6 of the Act to the effect that the suit properties were acquired for formation of East Coast Road. Notices were issued by the 3rd defendant to the partners of the plaintiff under
Sections 9(3) and 10 of the said Act. The defendants have taken possession of the suit properties and laid the roads thereon, without intimating the award passed in respect of the acquisition of lands and offering the plaintiff any compensation for the land. But the 3rd defendant passed an Award in respect of other lands acquired under the very same Notification issued by him. Even after conducting an enquiry as envisaged under
Section 11 of the Act, the 3rd defendant failed to make an award in respect of the suit property. Hence the suit for the aforesaid directions.
3. The defendants filed a written statement admitting the Notification under
Section 4(1) of the Land Acquisition Act issued in respect of the suit property. But the defendants deny the contention of the plaintiffs that the suit property belonged to the partners of the plaintiff Firm and thereafter, it was brought into the stock of the partnership Firm in the year 1972. The authorities, who took acquisition proceedings were guided only by the existing revenue records. The declaration of Notification under Section 6 of the Act was also issued by the 3rd Defendant on 1.10.1973. The records would show that the Pondicherry Planning Authority while issuing interim approval for the layout for residential plots in the suit properties, directed the party to carry out the developments by providing roads and parks. All the conditions stipulated in the interim approval were scrupulously carried out while the final approval of the layout was granted by the Pondicherry Planning Authority. Therefore, there was no necessity for the defendants to pass any Award in respect of the suit property and the question of payment of compensation also does not arise. With the aforesaid pleadings, the defendants prayed for dismissal of the suit.
4. The trial court having found that the suit property was already surrendered by the plaintiffs to the Pondicherry Town Planning Authority and that the possession of the suit property was taken only from the Town Planning Authority by the defendants, it has held that the question of payment of any compensation to the plaintiffs would not arise. The Trial Court also observed that there was some latches on the part of the plaintiff to approach the Court challenging the acquisition proceedings initiated by the 3rd defendant. The trial court ultimately dismissed the suit filed by the plaintiff.
5. The First Appellate Court having found that Ex.B.2 is only a Minute of Approval Proceedings and not the final approval proceedings, chose to grant the relief as prayed for by the plaintiff. Referring to the question of limitation, the First Appellate Court observed that there had been several correspondence between the litigating parties and that therefore, the delay if any, would not have an adverse impact on the civil right of the plaintiff canvassed before the court. The First Appellate Court having set aside the judgment of the trial court allowed the appeal preferred by the plaintiff.
6. At the time of admitting the Second Appeal, the following Substantial Questions of law were formulated by this Court :
1. Whether the partnership firm, before it becomes the absolute owner of the suit property, is entitled to file the suit.
2. Whether, Mandatory Injunction under the Specific Performance Act, can be converted into one of a writ of Mandamus under
Article 226 of the Constitution of India.
3. Whether the suit is maintainable against the award of the Land Acquisition Officer, when there is specific remedy under
Section 54 of the Land Acquisition Act.
7. The learned Counsel appearing for the Defendants would submit that the Senior Town Planner, who participated in the Award Proceedings before the 3rd defendant, has categorically stated that the plaintiffs who applied for approval of layout for the suit properties and adjoining properties were given interim approval of layout on condition that they gifted away the suit property to the Municipality for the purpose of laying a road. Final Approval was granted only after the properties were gifted to the Pondicherry Town Planning Authority for the purpose of laying the road. The 3rd defendant having found that the suit property was already surrendered by the plaintiffs to the Pondicherry Town Planning Authority and the Plaintiffs did not have any right over the suit properties chose not to pass any Award of compensation in favour of the plaintiffs. It is her further submission that the award Ex.B.1 passed in respect of other properties covered under the relevant Notification specifically speaks to the disentitlement of the plaintiff as they did not have any right over the suit properties. Therefore, the plaintiffs should have challenged the said award. It is her further submission that instead of approaching the writ jurisdiction of this Court, the plaintiff has approached the Civil Court for a direction to the Executive Authority to act on a particular direction. It is her final submission that the award was passed as early as on 31.3.1978, but the suit was laid by the plaintiffs only on 20.10.1989 after a lapse of about 10 years and 7 months. Even assuming for the sake of arguments that the plaintiffs can invoke the jurisdiction of this Court seeking the remedies sought for under
Article 72 of the Limitation Act, the plaintiffs should have filed the suit within one year from the date of the award passed by the 3rd Defendant negativing the claim of compensation made by the plaintiffs.
8. The learned counsel appearing for the plaintiffs would submit that the 3rd defendant has no jurisdiction to decide the title of the suit properties. The moment the 3rd defendant comes to a decision that there is a dispute with respect to the claim made over the suit property, the 3rd defendant should have referred the dispute to the Civil Court under Section 30 of the Land Acquisition Act. At any rate, the 3rd defendant having issued the Notification under
Section 4(1) of the Land Acquisition Act on 27.3.1971 and also made declaration under Section 6 of the said Act on 1.10.1973 should have passed an award under
Section 11 of the said Act with respect to the suit properties. The Civil Court has jurisdiction to give a direction to the 3rd defendant, to pass an award under
Section 11 of the Act. It is his further submission that the defendants have categorically admitted in the Written Statement that the award was not passed with respect to the suit properties by the 3rd defendant. Though an award Ex.B1 was produced before this Court, the said award was not communicated to the plaintiffs. Therefore, the suit is not barred by Limitation under
Article 72 of the Limitation Act. It is his further submission that the title to the suit properties would be established by the plaintiff before the Forum concerned, once the award under
Section 11 is passed and suitable reference is made under Section 30 by the 3rd defendant. Therefore, he would submit that the First Appellate Authority has rightly granted the relief of Mandatory Injunction as sought for by the plaintiff.
9. Ex.B.1 is an Award passed by the 3rd defendant with respect to the other properties covered under the Notification under Section 4 of the Act issued by the 3rd defendant on 27.3.1971 and the Declaration under under
Section 6(1) made by him on 1.10.1973. As regards the suit property, the 3rd defendant made some observations in the Award Ex.B.1 dated 31.3.1978. The relevant observation made by the 3rd defendant with respect to the suit property in the Award Ex.B.1 reads as follows:
"During the inspection by predecessor found that in the portion now under acquisition in the lands bearing S.No.1637bis-2/18B, 1637bis-16/18B, 10 & 7 have actually been left in the layout for use as streets. The land owners are bound to leave 100 feet width as road in order to obtain the approval of the Senior Town Planner for the layout. Hence he felt that no compensation need be paid in these cases. The matter has been referred to the S.T.P. Pondicherry. The Senior Planner in his letter No.1475/TCP/75 dated 20.12.74 has intimated that the portion under acquisition in S.No.7 & 10 Natesa Nagar) alone may be deemed to be public property as per terms and conditions of the layout and the other two fields are under acquisition for a different public purpose. Hence no compensation is being paid for the lands bearing S.No.7 & 10."
10. On a careful perusal of the aforesaid observations made by the 3rd defendant in the Award Ex.B.1 passed by him, it is found that an enquiry was embarked upon and in the said enquiry, it came to light that the suit property was in fact earmarked in the layout for the purpose of using it as a street in order to obtain the approval of the layout. The Senior Town Planning Authority of Pondicherry has also corresponded with the 3rd defendant informing him that the suit property was deemed to be public property. In view of the above, the 3rd defendant passed an order stating that no compensation need be paid for the suit properties as the suit properties had already become the public property as per the terms and conditions of the final layout approval granted by the Town Planning Authority, Pondicherry.
11. It is not as if no order was passed by the third respondent with respect to the suit properties. In the Acquisition Proceedings , the 3rd defendant having come to know that the suit properties had already become the public property on account of the surrender of the same by the plaintiffs in favour of the Municipality chose to hold that no compensation need be paid for the suit properties. Under such circumstances, an award granting compensation for the suit properties could not be passed by the 3rd defendant. Once the Government has come to a decision that a particular property is a public property, the question of acquisition of the same or payment of compensation therefor would not arise. Though in this case Section 4(1) Notification was issued and
Section 6 Declaration also was made by the 3rd defendant with respect to the suit properties as it had come to light during passing of award under
Section 11 of the Act that the suit properties are public property, the 3rd defendant having observed so, rightly refused to grant any compensation for the suit property.
12. The plaintiff has to necessarily challenge such a finding found in the Award Ex.B.1 with respect to the suit property. It is contended by the plaintiffs that the said Award Ex.B.1 was not served on them. The defendants also have not produced any documents to show that the said award was served on the plaintiffs. The defendants would have been under the impression that there was no necessity to serve the copy of the Award on the plaintiffs as the award was not passed with respect to the suit properties granting compensation. Atleast the plaintiffs who in fact participated in the award proceedings should have woken up within a reasonable time to come to know what was the fate of the Award Proceedings taken by the 3rd defendant. Having slept over for 10 years and 7 months, it appears that the plaintiffs have now knocked at the doors of the Civil Court. At any rate, inasmuch as there is no evidence on record to show that Ex.B.1 was served on the plaintiffs nor was any evidence to show that the plaintiffs came to know of the findings found in the Award Ex.B.1, the period of limitation does not start running.
Article 72 of the Limitation Act, 1963 would apply in a case where a suit has been filed praying for compensation for committing an act or omitting to do an act by the authority concerned pursuant to the provisions of any enactment in force. Here in the suit, the plaintiffs have not sought for any compensation. They have only filed the suit for Mandatory Injunction seeking a direction to the defendants to pass an Award in their favour. Therefore,
Article 72 will not apply to the facts of this case.
13. At any rate, a direction has been sought as against an Executive Authority to perform its function. The plaintiffs should have approached the writ jurisdiction of this Court to give a direction to the Executive Authority to perform its functions. It appears that the plaintiffs have approached wrongly the Civil Court seeking such a direction. But on the facts and circumstances of this case, it is found that no Mandatory Injunction can be granted as against the 3rd defendant who had already passed an Award Ex.B.1 making clearly an observation therein that the plaintiffs were not entitled to any compensation with respect to the suit properties as the suit properties had already vested with the Municipality.
14. Coming to the scope of Section 30 of the Land Acquisition Act, 1894, it is found that only when the amount of compensation has been settled under
Section 11 of the Act by the Authority, the dispute if any with respect to apportionment of compensation from the rival claim made by the parties seeking compensation may be referred by the Collector to the Civil Court for determination.
15. Firstly, it is found that the 3rd defendant while passing an Award under
Section 11 has categorically held that no compensation can be awarded in respect of the suit properties as they are found to be properties vested with the Municipality. Therefore, there was no scope for reference under Section 30 of the Land Acquisition Act, 1894 by the 3rd defendant. Secondly, a discretion has been given to the Collector under Section 30 of the Land Acquisition Act to refer the dispute to the decision of the Civil Court, when he considers that there is a dispute relating to the entitlement of compensation or the apportionment of compensation. The Collector has thought it fit not to refer the dispute to the decision of the Civil Court as he had already determined that no compensation need be paid inasmuch as the properties had already vested with the Municipality. Of course, the Revenue Authorities do not have the power to decide the title to the properties and it is only the Civil Court which can determine the rival claim made by the parties to a property. The 3rd defendant has returned a finding that no compensation need be paid as the properties had already vested with the Municipality. Such a finding will have to be challenged by the plaintiffs before the Forum concerned. When the 3rd defendant had already given a finding with respect to the entitlement of compensation made by the plaintiffs in the Award Ex.B.1, this Court cannot give any direction to the defendants to pass an award in favour of the plaintiffs. The relief as such sought for by the plaintiffs before the Civil Court on the face of it is not at all sustainable.
16. The First Appellate Court had made an observation that Ex.B.20 is only the Minutes of Approval Proceedings and not final approval for the layout given by the Town Planning Authority, Pondicherry. It has further observed that no document was filed to show that the plaintiffs surrendered the properties in favour of the Municipality. On a perusal of the Ex.B.2, it is found that interim approval of layout was given by the Town Planning Authority, Pondicherry, only on condition that final approval would be given on surrender of the suit properties for laying a road. There is no dispute to the fact that the plaintiffs got final approval of layout. The final approval was produced before this Court as Ex.B.8. The Blue Print of the layout was also marked as Ex.B.3 on the side of the defendants. The aforesaid documents would go to show that the final approval had been obtained by the plaintiffs only on surrender of the suit properties.
17. I find that the plaintiffs have approached the wrong Forum seeking a relief of Mandatory Injunction as against the Executive Authority who had already rendered a finding with respect to the suit properties in the Award Ex.B.1 already passed by them. Instead of challenging the said findings in the said Award passed by the 3rd defendant, the plaintiffs have wrongly chosen the Civil Court. Though the suit is not barred by limitation, it is found that the plaintiffs have not approached the proper forum seeking the remedy challenging the findings rendered in the Award Ex.B.1. When a finding had already been rendered by the 3rd defendant in the Award concerned marked as Ex.B.1, this Court ceases to have jurisdiction to direct the 3rd defendant by way of Mandatory Injunction to pass an award in favour of the plaintiffs whose plea for compensation was negatived by the Executive Authority.
18. As regards the 3rd substantial question of law framed by this Court, firstly, it is found that appeal remedy has been provided under
Section 54 of the Land Acquisition Act and not under Section 55 of the Land Acquisition Act.
Section 54 of the Land Acquisition Act applies to cases where appeals are preferred before the High Court against the Judgment of the Reference Court, namely, the Civil Court and not against the award passed by the Executive Authority. Therefore, the plea of the defendants that the suit is not maintainable as there is already a specific remedy provided under
Section 54 of the Land Acquisition Act does not survive for consideration.
19. Coming to the first Substantial question of law framed by this Court, it is found that the plaintiffs have established by producing an additional document Ex.A.21 that the suit properties prior to the surrender to Municipality were brought into the stock of the plaintiff Partnership Firm after the formation of the partnership firm in the year 1972. The substantial question of law is decided accordingly.
20. In view of the above confirming the judgment of the Trial Court and setting aside the judgment of the First Appellate Court, the Second Appeal is allowed. There is no orders as to costs.
tsi To
1. The Inspector of Processes-cum-Additional District Munsif at Pondicherry.
2. The Principal District Judge, Pondicherry