BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 09/08/2011
Coram
THE HONOURABLE MR. JUSTICE VINOD K. SHARMA
Writ Petition(MD)No.5881 of 2007
and
M.P.(MD)No.3 of 2007
1. D. Ravisankar,
S/o. Late. Desikasankar,
140, P.K.S.Street,
Sivakasi.
2. D. Prabusankar,
S/o. Late. Desikasankar,
Plot No.644, K.K.Nagar,
Madurai, rep. by Power
Agent D. Ravisankar
3. C. D. R. Chidambaram,
S/o. D. Ravisankar,
140, P.K.S. Street,
Sivakasi. ...... Petitioners
Vs
1. The Secretary to Government,
Municipal Administration and
Water Supply (MA. V) Department,
Fort. St. George, Chennai - 9.
2. The District Collector,
Virudunagar District,
Virudunagar.
3. The Revenue Divisional Officer,
Sivakasi.
4. The Commissioner,
Sivakasi Municipality,
Sivakasi. ...... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorari to call for the records relating to
the proceedings of the respondents 1 to 3, relating to G.O.Ms.No.50 Municipal
Administration and Water Supply (MA. V) Department dated 20.04.2005, the
District together dated 26.02.2004 and Na.Ka.Aa.1/16882/2002 (award No.1 of
2007) dated 17.04.2007 respectively and quash the same.
!For Petitioner ... Mr. A. Sivaji
^For Respondents... Mr. D. Muruganandam for R-1 to R-3
Additional Government Pleader
Mr. N. Dilip Kumar for R-4
- - - - - - - -
:ORDER
The petitioner prays for issuance of a Writ in the nature of
Certiorari, to quash the acquisition proceedings relating to G.O.Ms.No.50
Municipal Administration and Water Supply (MA.V) Department dated 20.04.2005, as
well as the Notification issued under Section 6 of the Land Acquisition Act and
the award dated 17.04.2007.
2. The case pleaded by the petitioner, is that his grand father
along with his sons conveyed an area measuring 4750 sq. yards in 1957, to the
fourth respondent for municipal bus stand. The fourth respondent / Commissioner,
Sivakasi Municipality thereafter demanded more area, on request, another 444 sq.
yards was conveyed in the year 1959.
3. The municipal Committee, in violation of conveyance in their
favour, encroached larger area, than the one assigned, for which the petitioner
had taken steps to get eviction order.
4. It is the case of the petitioner, that in view of the action
taken against the fourth respondent, the proceedings were initiated to acquire
the land of the petitioner. The Notification under Section 4(1) of the Land
Acquisition Act was issued by the State Government on 25.02.1994, which was
followed by the Notification under Section 6 of the Act on 16.05.1995. The
proceedings of acquisition were under challenge before this Court in
W.P.Nos.16033 of 1995, 13436 of 1996 and 12563 of 1997, the Notifications were
quashed, by this Court by allowing the writ petitions.
5. After quashing of the Notification, the Government, again issued
a Notification under Section 4(1) of the Land Acquisition Act. It was followed
by Notification under Section 6 of the Act, and finally the Award dated
17.04.2007 stands passed.
6. The prayer of the petitioner, is that the acquisition proceedings
right from the stage of Section 4(1) of the Land Acquisition Act are liable to
be quashed for the reasons, that issuance of Notification in the District
Gazette is illegal and contrary to law, being in violation of the statutory
provisions as according to the provisions of the Land Acquisition Act, the
substance of Notification under Section 4(1) of the Act is required to be
published in the official Gazette, and not in the District Gazette.
7. The other ground is that the costs of land was assessed by the
Collector at Rs.59,24,194/-(Rupees Fifty Nine Lakhs Twenty Four Thousand One
Hundred and Ninety Four only), therefore, the Collector was not competent to
issue the Notice under Section 4(1) of the Act.
8. The petitioner also submits that there is violation in
publication of the substance of Notification in the local newspaper, by pleading
that it was not done within the statutory period.
9. The petitioner also claims, that there was violation of principle
of natural justice, in dealing with the objections filed under Section 5-A of
the Act.
10. The writ is opposed by the learned Additional Government Pleader
on the ground of its maintainability, after passing of the Award.
11. The contention of the learned Additional Government Pleader is
that the petitioner was given full opportunity while deciding objections under
Section 5-A of the Act, and it was only after hearing the objections of the
petitioner, that the Notification under Section 6 of the Act was issued.
12. It is also the contention of the learned counsel for the fourth
respondent, that notice was issued by the Revenue Divisional Officer, exercising
the power of the District Collector, and in spite of the Notice, the petitioner
failed to appear before the Revenue Divisional Officer, therefore, it is not
open to the petitioner to now challenge the acquisition proceedings after
passing of the Award.
13. In support of the contention, the learned counsel for the fourth
respondent placed reliance on the Judgment of the Hon’ble Supreme Court in M/S.
WASTE PRODUCTS RECLAIMOR PRIVATE LTD., ..VS.. M/S. BHARAT COKING COAL LTD., AND
OTHERS (1993 SUPP (2) S.C.C. 358) wherein the Hon’ble Supreme Court was pleased
to lay down, that non publication of the Notification in Official Gazette is a
technical objection, which stands defeated by laches.
14. The learned counsel for the fourth respondent also placed
reliance on the decision of this Court in RAMALINGAM AND OTHERS ..VS.. THE STATE
OF TAMIL NADU AND OTHERS (2005 (2) L.W. 693), wherein this Court was pleased to
lay down as under:-
“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 2003 (4)
S.C.C. 485 (Tej Kaur and others ..Vs.. State of Punjab and others); A.I.R. 2000
S.C. 671 (Municipal Council, Ahmed Nagar ..Vs.. Shah Hyder Beig); 1997 (9)
S.C.C. 224 (Executive Engineer, Jal Nigam Central Stores Divisionl, Uttar
Pradesh ..Vs.. Suresh Nand Jayal); and 1996 (1) S.C.C. 250 (State of Tamil Nadu
..Vs.. L. Krishnan and others). Following the aforesaid decision, we are of the
opinion that the writ petitions itself were not maintainable and they should
have been dismissed on this ground itself. Hence, the Writ Appeals are
dismissed. Connected WAMP Nos.1595 to 1599 of 2005 are closed.”
15. Reliance was also placed on the Judgment of this Court in the
case of CHINNAMMAL ..VS.. GOVERNMENT OF TAMIL NADU (2011 (4) C.T.C. 198) wherein
it was held as under:-
“It is trite law that once an award is passed, it is not open to the
parties to approach this Court to challenge the violations in the procedure
adopted in passing the Notification under Section 4(1) of the Act and the
resultant declaration under Section 6 of the Act. Therefore, in law the
petitioners are barred from challenging the alleged irregularities said to have
been committed prior to the passing of the Award. Another question for
consideration is as to whether the Petitioners can be permitted to raise the
additional grounds at the time of hearing the writ petitions? The petitioners
have raised three contentions in the additional grounds such as non-application
of mind while passing the order under Section 5-A of the Act, not obtaining the
prior approval before the issuance of the Notification and not obtaining the
prior approval before passing the award. In the opinion of this Court, it is not
quite open to the petitioners to raise all these contentions for the first time.
By raising these contentions, the petitioners are trying to get over the delay,
laches and acquiescence on their part.
Therefore, this Court is of the view that the Writ Petitions are not
maintainable in law and facts for having approached this Court much after the
passing of the award which they were quite aware of and raising the additional
grounds at the time of hearing the Writ Petitions cannot be permitted. It is
pertinent to note that the Writ Petitions have been filed in the year 2001 and
2003 respectively. Applications have been filed by the Respondents for vacating
the interim stay in the year 2004. Thereafter, they have filed Applications for
fixing early dates for the disposal of the Writ Petitions. This Court has fixed
the date in the year 2007 after a period of six weeks. There is absolutely no
explanation from the Petitioners for not filing any Application for additional
grounds till that point of time. The petitioners cannot be permitted to conduct
a roving enquiry in a proceeding initiated under the Act. Hence, this Court is
of the view that the Writ Petitions are liable to be dismissed on the ground of
delay, laches and acquiescence”.
16. Learned counsel for the petitioner on the other hand contended,
that the Judgments relied upon by the learned counsel for the respondents, will
not be applicable to the facts of the present case, as the Award passed by the
Revenue Divisional Officer, is non est and void and therefore, cannot be said to
be an Award in the eye of law, to bar the maintainability of writ petition, to
challenge the acquisition proceedings, at this stage.
17. In support of the contention, learned counsel for the petitioner
referred to Section 11 of the Land Acquisition Act, to contend, that the Award
passed by the Revenue Divisional Officer, on the face of it, is without
jurisdiction, as the competence to pass an award is that of the Collector or a
person notified by the Government. In the absence of a Notification /
Authorization, it cannot be said, that the Revenue Divisional Officer had the
jurisdiction to pass an award.
18. The main contention of the learned counsel for the petitioner is
that the Award is non est, as it was pre-requisite for the Revenue Divisional
Officer / Collector to get an approval of the State Government, or persons so
authorized before making of an Award. But, in this case, no such approval was
obtained before passing the Award.
19. In support of the contention, the learned counsel for the
petitioner placed reliance on the decision of the Hon’ble Supreme Court in STATE
OF U.P AND OTHERS ..VS.. RAJIV GUPTA AND ANOTHER (1994 (5) S.C.C. 686), wherein
the Hon’ble Supreme Court was pleased to lay down, that prior approval of the
appropriate Government is necessary for making the Award, as in terms of Section
11 of the Act, no award can be made without prior approval of the Government or
its authorised officer, and any violation of such requirement renders the Award
null and void and illegal.
20. The contention of the learned counsel for the petitioner, is
that once an Award is held to be null and void, then it will be no Award, in the
eye of law, and therefore, the writ petition to challenge the acquisition will
be maintainable.
21. The contention of the learned counsel for the petitioner,
therefore, is, that in this case, the Notification issued under Section 4(1) of
the Act cannot be sustained, as the substance of the Notification was not
published in the official Gazette, but only in the District Gazette, thus, it is
not a valid Notification.
22. The learned counsel for the petitioner also contended, that in
view of the land value having been fixed as Rs.59,24,194/-(Rupees Fifty Nine
Lakhs Twenty Four Thousand One Hundred and Ninety Four only), the Notification
could only be issued by the State Government, whereas the Notification in this
case was issued by the Collector, which renders the Notification under Section
4(1) and 6 of the Land Acquisition Act to be invalid, and the petition deserves
to be succeed, by quashing the Notifications and the Proceedings.
23. There can be no dispute with the contention raised by the
learned counsel for the petitioner that the Notification issued under Section
4(1) and 6 of the Land Acquisition Act could be set aside on the grounds taken
in writ petition, in case there were challenge in time i.e., before passing of
the award.
24. The question to be decided in this case is, whether the
petitioner can question the acquisition proceedings after passing of the Award,
in view of the authoritative pronouncement by this Court in the case of
RAMALINGAM AND OTHERS ..VS.. THE STATE OF TAMIL NADU AND OTHERS (supra) and
CHINNAMMAL ..VS.. GOVERNMENT OF TAMIL NADU (supra).
25. This only question to be decided is whether the Award is null
and void, for want of prior approval by the competent authority, to hold that
there exists no award, so as to adjudicate the contentions raised on merit.
The answer to this question is in negative, for the reasons hereinafter stated.
26. On 12.05.2005, the Collector, Virudhunagar District,
Virudhunagar has passed the following order:-
“ORDER
Where as the Government of Tamil Nadu having been satisfied that the
land specified in the schedule attached have to be acquired for public purpose
and a declaration under section 6 of the land acquisition act 1894 (Central Act
of 1894) has already been published on 26.02.2004 in the localities.
2. And where as the under clause (1) of Section 3 of the said Act
the Revenue Divisional Officer, Sivakasi has already been appointed to perform
the functions of the Collector under said Act in the Notification under Section
4(1) of the Land Acquisition Act 1894 (Central Act 1 of 1894) published at pages
3 – 4, of Virudhunagar District Gazette No.2, dated 09.06.2004.
3. And where as in the Revenue Department, Notification No.11(2)
Revenue 3777/94, dated 05.09.94 published at Page 916 of Part II section 207 the
Tamil Nadu Government Gazette dated 23.09.94 all the District Collectors have
been authorised to issue direction under Section 7 of the said Act.
Direction
Now, therefore, by virtue of the Authorisation of the Government
under Section 7 of the Act, the Collector of Virudhunagar District, Virudhunagar
hereby directs the Revenue Divisional Officer, Sivakasi to the lands specified
in the schdule attached and measuring 2080 sq.m which is needed for a public
purpose, for the extention of Sivakasi Bus Stand, shall be acquired for the said
purpose and the Revenue Divisional Officer, Sivakasi is appointed to perform the
functions of the Collector under the said Act.
Collector,
Virudhunagar District,
Virudhunagar.”
27. The contention of the learned counsel for the petitioner, that
the Revenue Divisional Officer, Sivakasi has no jurisdiction to pass an Award
deserves to be rejected. The valuation of the land was done and vide order
dated 22.03.2007, and the value of the land was fixed at Rs.17,68,460/- (Rupees
Seventeen Lakhs Sixty Eight thousand Four Hundred and Sixty only). The
jurisdiction of the Collector to issue the Notification for want of pecuniary
jurisdiction also cannot be questioned.
28. The Draft Award stood approved by the Collector, Virudhunagar
District. It was only after approval by the District Collector, that the Award
was passed by the competent authority.
29. The contention of the learned counsel for the petitioner, that
the Award is null and void thus non est, cannot be accepted.
30. Once the validity of the Award is upheld, the writ petition to
challenge the land acquisition proceedings, is not competent, in view of the
settled law, that it is not open to the party, to challenge the acquisition
proceedings, after passing of the Award.
31. Consequently, the Writ Petition is dismissed.
No costs.
Consequently, the connected M.P.(MD)No.3 of 2007 is closed.
Dpn/-
To
1. The Secretary to Government,
Municipal Administration and
Water Supply (MA. V) Department,
Fort. St. George, Chennai – 9.
2. The District Collector,
Virudunagar District,
Virudunagar.
3. The Revenue Divisional Officer,
Sivakasi.
4. The Commissioner,
Sivakasi Municipality,
Sivakasi.