BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/09/2011 CORAM THE HONOURABLE Mr.JUSTICE P.JYOTHIMANI and THE HONOURABLE Mr.JUSTICE M.M.SUNDRESH W.A.(MD)No.781 of 2011 and M.P.(MD)No.1 of 2011 1.D.Ravisankar 2.D.Prabusankar 3.C.D.R.Chidambaram ... Appellants Vs. 1.The Secretary to Government, Municipal Administration and Water Supply (MAV) Department, Fort.St.George, Chennai-9. 2.The District Collector, Virudhunagar District, Virudhunagar. 3.The Revenue Divisional Officer, Sivakasi. 4.The Commissioner, Sivakasi Municipality, Sivakasi. ... Respondents Prayer Appeal filed under Clause XV of Letters Patent Appeal, against the order dated 09.08.2011 passed by this Court in W.P.(MD)No.5881 of 2007. !For Appellant ... Mr.A.Sivaji ^For Respondents... Mr.Aiyram Selvakumar for R1 to R3 Mr.N.Dilip Kumar for R4 :JUDGMENT
(Judgment of the Court was delivered by P.JYOTHIMANI,J.)
The Writ Appeal is directed against the order of the learned Single Judge
dated 09.08.2011 in W.P.(MD)No.5881 of 2007, by which, the learned Single Judge
has dismissed the Writ petition filed by the appellants, challenging the
declaration issued under Section 6 of the Land Acquisition Act (hereinafter
called as the “Act”) dated 20.04.2005 and also the award, subsequently passed.
2.Law is well settled that after the award is passed, it is not open to
the parties to challenge the acquisition proceedings. Knowing the same, the
learned counsel for the appellants has in fact restricted his argument only in
respect of the validity of the award.
3.According to the learned counsel for the appellants, the declaration
issued under Section 6 of the Act, a copy of which was obtained by him under
Right to Information Act, 2005, in the form of G.O.Ms.No.50 Municipal
Administration and Water Supply (MA.V) Department dated 20.04.2005 shows that
the value of the lands acquired was Rs.59,24,194/-. However, when the impugned
award was passed on 22.03.2007, the value has been fixed as Rs.17,68,460/-.
Therefore, according to the learned counsel for the appellants, the reduction of
the value was done deliberately for the purpose of making the award valid, since
as per the circular issued by the Government, in cases where the value of the
award is more than Rs.50 lakhs, the approval of the government is required. The
value fixed under 6 declaration as Rs.59,24,194/- has been deliberately reduced
to Rs.17,68,460/- which is only to rectify the difficulties of the circular.
Therefore, according to the learned counsel, when once the value is above Rs.50
lakhs, which requires approval by the Government, which has not been obtained,
the award has to be set aside. If the award is to be set aside, the acquisition
proceedings also should automatically go. We do not subscribe to the view of
the learned counsel for the appellants.
4. In order to find out as to whether the award amount was fixed at the
time of 6 declaration, issued by the Government, we have called for the file
from the learned Government Advocate. Accordingly, the learned Government
Advocate produced the file along with the notification, issued by the Government
in the form of declaration under Section 6 of the Act in G.O.Ms.No.50 Municipal
Administration and Water Supply Department dated 20.04.2005. There is no
mention about the amount. It is also relevant at this stage to refer to Section
6 of the Land Acquisition Act, which nowhere contemplates that at the time of 6
declaration, the valuation of the property should be mentioned. Section 6 of
the Act reads as follows:
“6.Declaration that land is required for a public purpose –
(1)Subject to the provisions of Part VII of this Act, (when the appropriate
Government) is satisfied, after considering the report, if any, made under
Section 5-A, sub-section (2), that any particular land is needed for a public
purpose, or for a company, a declaration shall be made to that effect under the
signature of a Secretary to such Government or of some officer duly authorised
to certify its orders, and different declarations may be made, from time to
time, in respect of different parcels of any land covered by the same
notification under Section 4, sub-section (1), irrespective of whether one
report or different reports has or have been made (wherever required) under
Section 5-A, sub-section (2).
(2)Every declaration shall be published in the official gazette, and in
two daily newspapers circulating in the locality in which the land is situate of
which at least one shall be in the regional language, and the Collector shall
cause public notice of the substance of such declaration to be given at
convenient places in the said locality (the last of the dates of such
publication and the giving of such public notice, being hereinafter referred to
as the date of the publication of the declaration), and such declaration shall
state the district or other territorial division in which the land is situate,
the purpose for which it is needed, its approximate area, and, where a plan
shall have been made of the land, the place where such plan may be inspected.
(3)The said declaration shall be conclusive evidence that the land is
needed for a public purpose or for a company, as the case may be and, after
making such declaration, the appropriate Government may acquire the land in
manner hereinafter appearing.”
5. On a reference to Section 6, especially under Section 6 of sub section
2 shows that what are required for the purpose of publishing the declaration
are only relating to the particulars about the lands, purpose for which it was
needed and approximate area and there is no requirement of publishing the value
of the land. The value is to be fixed by conducting enquiry. We have also gone
through the entire files. The file shows that the value in respect of the lands
acquired have been fixed only at Rs.17,68,460/-. In fact, for the purpose of
conducting an enquiry regarding passing of the award, which includes the fixing
of the value under Sections 9(3) and 10(1) of the Act, notice has been issued.
6.Since Mr.A.Sivaji, learned counsel for the appellants has also raised a
point that even at the time of fixing the value under Sections 9(3) and 10(1) of
the Act, no notice has been served, as contemplated under Section 45 of the
Act. We again referred to the file in respect of the notice issued under the
above said provisions. It is true that under Section 45(3) of the Act, the
attempt must be made to serve notice to a male member of the family and if it is
unable to be served, it can be served by way of affixture. On a reference to
9(3) notice, as we have seen in the file, the same has been served to all the
three appellants and there has been an endorsement on the back side of the said
notices, but, the appellants have refused to receive and therefore, the
affixture was made in respect of each of the appellants and that has been
counter singed by many of the residents in the area, including the Village
Administrative Officers. Further, it is seen that in addition to the affixture
made, steps have been taken for the purpose of informing by “tom tom” and also
affixing the notice in a public place with the signature of various residents of
the area. In such circumstances, it cannot be said that even in the enquiry
conducted under Sections 9(3) and 10(1) of the Act, no proper notice was
served.
7.Further, the first appellant in his letter addressed to R.D.O. dated
08.06.2006 has in fact stated that his brother one Prabu, who is the 2nd
appellant, is working in Ramanathapuram in the TWAD Board and he requires 10
days time for the purpose of receiving the award amount. That also goes to show
that the appellants can never state that they were not aware of the award
enquiry. Therefore, even on seeing the entire file, we are fully satisfied that
the amount fixed as award is Rs.17,68,460/- and the award does not suffer any
illegality in the eye of law. In such view of the matter, we do not see any
reason to interfere with the order of the learned Single Judge, accordingly the
Writ Appeal fails and the same is dismissed.
8.Since pending the Writ petition and also the Writ Appeal, there has been
an order of stay, it is brought to the notice of this Court that the appellants
have not preferred any application under Section 18 of the Act by way of
reference. It is also seen that in respect of other appellants, there is no
record to show that the award copy has been communicated to them. In such view
of the matter, we are of the view that the appellants must be permitted to file
application for enhancement of compensation, if so advised. It is also made
clear that if such representation for enhancement of compensation is made by the
appellants, within a period of two weeks from the date of receipt of a copy of
this order to the appropriate authority, the authority shall refer the same to
the competent Court under Section 18 of the Act, within a period of 4 weeks
thereafter and then the competent Court shall decide the claim of the appellants
on merits and in accordance with law, in respect of enhancement of compensation,
in stead of rejecting it on the ground of limitation. No costs. Consequently,
connected M.P.is closed.
nbj
To
1.The Secretary to Government,
Municipal Administration and Water Supply (MAV) Department,
Fort.St.George, Chennai-9.
2.The District Collector,
Virudhunagar District,
Virudhunagar.
3.The Revenue Divisional Officer,
Sivakasi.
4.The Commissioner,
Sivakasi Municipality,
Sivakasi.