IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.01.2011 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION Nos.4048 & 4049 of 2003 and connected miscellaneous petitions. ..
1.L.Jegannath
2.J.Thulasidaran .. Petitioner in both the Wps.
vs.
1.The Land Acquisition Officer
& Revenue Divisional Officer
Palani.
2.The Chief Engineer, PWD
Pollachi Region
Office at Coimbatore.
3.The Superintending Engineer
PWD, Palani.
4.The Executive Engineer, PWD
Nanganjiyar Reservoir Project
Palani.
5.M/s.Narendra Dairy Farms (P) Ltd.,
by its Managing Director & Directors.
6.V.Duraisinga Lakshmana Naicker
7.Santhana Lakshmi
8.Devika
9.Rajesh
10.Pankajavalai
11.Yamini Mahalakshmi
12.Sathishkumar ..Respondents in both the Wps.
Writ Petitions filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus as stated therein.
For petitioners : Mr.T.R.Rajagopal,Sr.Counsel
for Mr.T.R.Rajaraman
For respondents : Mr.N.Senthilkumar,AGP for R.1to4
Mr.R.Thiagarajan,Sr.Counsel
for Mr.R.S.Pandiyaraj
for R.5toR.12
..
COMMON ORDER
The writ petitions are directed against the award of the first respondent, the Land Acquisition Officer/Revenue Divisional Officer, Palani dated 10.2.1993 passed in Award No.8 of 1992 and Award No.7 of 1992 respectively and the subsequent judgment and decree in L.A.O.P.Nos.7 of 1996 and 6 of 1996 respectively on the file of Sub Court, Palani in respect of an extent of 63.83.5 hectares of lands of Pudachu village, Palani taluk and an extent of 102.51.0 hectares of lands in Balasamudram village, Palani taluk, insofar as they relate to the entitlement and disbursement of money in favour of respondents 5 to 12 and also for direction against the respondents 1 to 4 to determine the apportionment of compensation between the petitioners and other respondents for disbursing the amount in respect of acquisition of land in 63.83.5 hectares in Padachu village and in 102.51.0 hectares in Balasumudram village.
2. The lands of an extent of 63.83.5 hectares (160.13 acres) in survey Nos.407/1, 409, 410, 444, 445, 446, 447, 448, 450, 452/2 and 453/2 in Pudachu village, Palani taluk and the lands in extent of 102.51.0 hectares (253.41 acres) in survey Nos.581, 582, 583, 586, 588, 589, 591, 592, 593, 602, 603, 605/2, 614, 615, 616, 619, 622, 623, 624 and 625 in Balasamudram village, Palani taluk originally belonged to Sri M.Kullamma Naicker, one of the founders of M/s.Narendra Dairy Farms (P) Ltd., the 5th respondent herein.
a) During his life time, the said M.Kullamma Naicker executed a Will, bequeathing many of the properties including his interest in the above mentioned properties in favour of the second petitioner, J.Thulasidaran and also in favour of one Rajendran, son of the first petitioner who were then minors. Since the said Rajendran passed away, his estate devolved on the petitioners.
b) The 5th respondent company resolved to purchase immovable properties stated above along with an extent of 31.79 acres in Ayyampulli village, Palani taluk from Kullamma Naicker for a total consideration of Rs.1,75,000/-. The 5th respondent company purchased the said 445 acres in Padachu village, Balasamudram village and Ayyampulli village for the said consideration of Rs.1,75,000/- under a sale deed dated 23.12.1959. Since the company was unable to use the lands in Ayyampulli village, the 5th respondent reconveyed the lands in 31.79 acres in Ayyampulli village under a sale deed dated 30.3.1960 in favour of the said Kullamma Naicker. Out of the total consideration of Rs.1,75,000/- under the sale deed dated 23.12.1959, the 5th respondent paid only Rs.10,000/- to the vendor Kullamma Naicker and the balance amount was withheld. c) It is stated that the balance sale consideration was agreed to be payable as per document dated 23.12.1959 with interest 4% p.a. Under the reconveyance effected in respect of the lands at Ayyampulli village, the value of which was arrived at Rs.16,000/-, the said amount was adjusted and there was an amount of Rs.1,52,412.71 liable to be paid by the 5th respondent to M.Kullamma Naicker and that was recorded as a secured liability of the 5th respondent towards the unpaid purchase money. The said Kullamma Naicker was put in possession of the entire lands under an arrangement by which any income from the said properties was to be received and retained by Kullamma Naicker towards interest payable by the company and the balance unpaid sale consideration.
d) After the demise of Kullamma Naicker, the possession continued with the second petitioner and the said Rajendran (son of the 1st petitioner) and the same was recognized by the 5th respondent company by resolution to the effect that as legal heirs of the said Kullamma Naicker, the above said persons may enjoy the properties till the balance unpaid sale considerations are paid. There were some disputes between the legal heirs of the founder members of the 5th respondent company and ultimately there was a family settlement on 5.2.1969 and as per the said settlement, the liability of the company to the extent of Rs.1,52,412.71 shown in the balance sheet of the 5th respondent company as on 30.6.1961 was recognized towards unpaid balance purchase money to the petitioners being the heirs of Kullamma Naicker payable by the 5th respondent company and its shareholders who are respondent 6 to 12.
e) The Government, in the year 1972, initiated acquisition proceedings for Palar-Porunthalaru Scheme for construction of a dam for which in the 5A Enquiry, the petitioners were given notice and the wife of the first petitioner made a representation to the Government. Pursuant to the notification issued under section 4(1) of the Land Acquisition Act, possession was taken due to urgency from the petitioners. The acquisition proceedings had not been proceeded further and nothing happened between 1972 and 1988 and after lapse of acquisition proceedings originally initiated, there were fresh proceedings initiated by the Government by issuing section 4(1) notification, in respect of which no notice was issued to the petitioners. Notification under section 4(1) was issued on 11.1.1990 by dispensing with the enquiry under section 5A of the Act by virtue of section 17 of the Act and the declaration under section 6 of the Act came to be passed on 7.6.1991 published in the Gazette on 10.6.1991.
f) In spite of the fact that under the previous proceedings the petitioners were shown as persons interested, in the subsequent land acquisition proceedings, the petitioners were ignored and without any notice, the proceedings under the Act were commenced behind their back and none of the representations given by the petitioners in respect of previous land acquisition proceedings was considered, in spite of the fact that the possession under the earlier acquisition proceedings was taken from the petitioners. The petitioners made representations in the award proceedings before the Land Acquisition Officer in respect of second acquisition viz., the first respondent who failed to consider the case of the petitioners and the petitioners came to know only recently that the award had been passed and the same was referred to the Civil Court under section 18 of the Land Acquisition Act in LAOP Nos.6 and 7 of 1996.
g) As against the order passed in LAOPs., the respondents 1 to 4 filed an appeal before this Court and it was at that stage, the petitioner came to know about the award passed under the second acquisition proceedings. Therefore, the delay in approaching the Court is not on account of negligence or default on the part of the petitioners, but it is due to the deliberate conduct of the first respondent to favour the interested parties. A copy of the award has not been furnished to them and the petitioners have understood that the matter is now pending in appeal before this Court in A.S.Nos.132 and 133 of 2002 and the petitioners have filed applications immediately to implead them as parties. Since the award copy was not furnished to them, they were not able to file the writ petition earlier challenging the award even though the award was of the year 1993 and the copy of the award was obtained recently which has been filed along with the writ petition challenging the award.
h) It is also now submitted that the impleading petitions filed by the petitioners in the first appeal against the orders passed in LAOP Nos.7 and 6 of 1996 respectively in C.M.P.Nos.648 and 659 of 2009 came to be dismissed and ultimately, the appeals filed by the Government in A.S. Nos.132 and 133 of 2002 also came to be dismissed while the cross objection filed by the 5th respondent came to be partly allowed. The review applications filed by the petitioners in Rev.Appln.Nos.140 and 141 of 2003 in respect of dismissal of the impleading petition also came to be dismissed and the SLP filed before the Honble Apex Court was also dismissed.
3. In the present writ petitions filed by the petitioners questioning the award, it is their case that as per section 3(b) of the Land Acquisition Act,1894, the petitioners are the “persons interested” and as legal heirs of the vendor who was given possession against the unpaid sale consideration, they are the usufructuary mortgagees and therefore, they should have been heard when the second acquisition proceedings were initiated. The claim of the respondents 5 to 12 is under the registered sale deed dated 23.12.1959 under which the petitioners, being the unpaid vendors, got a right to retain the possession for the repayment of the amount of Rs.1,52,412.71 and the possession was given to the petitioners as per the resolution of the 5th respondent company itself in lieu of interest payable for the unpaid sale consideration and they are entitled for protection under section 55 (4)(b) of the Transfer of Property Act,1882. The award is challenged also on the ground that inasmuch the notice of award has not been issued to the persons interested, the entire award becomes invalid in the eye of law. The petitioners under section 28 of the Land Acquisition Act are entitled for compensation since the possession was taken from them and as per section 19 of the Land Acquisition Act, the first respondent ought to have informed about the petitioners interest while making reference to the Court.
4. In the counter affidavit filed by the 4th respondent, the Executive Engineer, Public Works Department, Palani, which is in the form of an affidavit to the petition filed to vacate the interim order granted by this Court, it is stated that the Government in G.O.Ms.No.2008, Public Works Department dated 8.10.1970 sanctioned a scheme for construction of a dam across Palar Porundalar River for an extent of 1527.07 acres and the dam covers various villages viz., Periyammapatty, Pudachu and Balasamudram of Palani taluk. The construction work was started in the year 1970 and an extent of 102.51.0 hectares of dry lands in survey No.581 etc. in Balasamudram village and an extent of 63.83.5 hectares of dry lands in S.No.401/1 etc., of Pudachu village of Palani taluk which belonged to 5th respondent were also covered in the acquisition proceedings.
a) The entire lands at the time of acquisition proceedings stood in the name of 5th respondent, M/s.Narendra Dairy Farms (P) Ltd. by its Managing Directors, Duraisinga Lakshmana Naicker and Sethupathy Subbanaicker. Earlier in the year 1971-72, under the Land Reforms Act, the authorized officer (Land Reforms) declared the above said lands as surplus lands and therefore, the land acquisition proceedings were withheld to obtain clearance from the Land Reforms Officer concerned.
b) It was, against the declaration of lands as surplus under the Land Reforms Act, the 5th respondent approached this Court by filing W.P.Nos.119 and 120 of 1974 praying for direction to the State Government to continue the land acquisition proceedings and in the order dated 9.4.1979, this Court ordered to continue the land acquisition proceedings of the lands belonging to the 5th respondent. The Government filed W.A.Nos.677 and 678 of 1979 and in the judgment dated 17.9.1986, the writ appeals were dismissed.
c) The land acquisition proceedings were initiated to acquire the lands belonging to the 5th respondent under section 17(1) of the Land Acquisition Act by invoking the urgency clause. The notification under section 4(1) was approved and published in the Gazette on 11.9.1990 and the substance of the notification was published in the locality on 24.10.1990. Thereafter, the declaration under section 6 of the Act was approved and published in the Government Gazette on 10.6.1991 and direction under section 7 of the Act was published in the Gazette on 13.11.1991.
d) The general notice under sections 9(1) and 10 of the Act was published on 10.10.1992 to file objections by 19.10.1992. There was no objection from any one during the award enquiry conducted on 19.10.1992. Therefore, the draft award was passed as unobjectionable and submitted to the Collector on 9.11.1992 and after getting proper approval, the award came to be passed in favour of land owners on 10.2.1993. While the petitioners admitted that Kullamma Naicker sold the entire properties to the 5th respondent under sale deed dated 23.12.1959 for a consideration of Rs.1,75,000/-, the non-payment of sale consideration is not a bar or restriction to the Government to proceed to acquire the lands in the administrative action.
e) At the time of initiation of land acquisition proceedings, the title of the lands was with the 5th respondent and therefore, there was no necessity to consider the claim of the petitioners at all. Under the original acquisition proceedings, the records were perused which showed that the 5th respondent was the registered owner of the lands, however, during oral enquiry, it came to know that the petitioners were having some interest in the lands and hence, 5A Enquiry notice was issued by the then Special Tahsildar, Land Acquisition.
f) In the meantime, since the Authorized Officer (Land Reforms) informed that the lands belonging to the 5th respondent attracted by the Land Ceiling Act, the original land acquisition proceedings were withheld for want of clearance under the Land Ceiling Act. It is therefore stated that the petitioners have no right over the properties. The original land acquisition proceedings against the 5th respondent company was dropped because of the land ceiling proceedings.
g) Between 1972 and 1988, the petitioners did not choose to approach any forum for the purpose of enforcing their right or interest over the properties and the 5th respondent alone moved the High Court to establish its right over the lands by filing writ petitions. It is stated that the subsequent land acquisition proceedings were initiated based on the direction given by the High Court in W.P.Nos.119 and 120 of 1974 filed by the 5th respondent and the High Court found that the properties stood in the name of 5th respondent and it was, thereafter, notice under sections 9(1) and 10 of the Land Acquisition Act was published.
h) The petitioners did not file any representation at any point of time. Even when the matter was referred to the Civil Court for decision regarding compensation under section 18 of the Land Acquisition Act, the petitioners did not take any steps. It is stated that the petitioners were aware that the lands sold to the 5th respondent attracted by the Land Ceiling Act and the acquisition proceedings were dropped and the petitioners were not connected with the lands and the lands were sold and there was no application on the part of the respondents to serve award copies to the petitioners. Therefore, there is no reasonable justification for condoning such a huge delay in approaching this Court after the award was passed even in the year 1993. i) The High Court in the order dated 9.4.1979 held that the 5th respondent was the owner, and the land acquisition proceeding was completed as per the provisions of the Act and Rules and the award was also passed and therefore, it cannot be stated that the award is illegal. It is reiterated that the land acquisition proceedings itself were initiated as per the judgment of this Court in W.P.Nos.119 and 120 of 1994.
j) While the notification under section 4(1) of the Act was issued and subsequent notice was issued under sections 9(1) and 10 of the Act as stated above, the 4th respondent has reiterated that the petitioners had never raised any objection. It is stated that after the sale by Kullamma Naicker on 23.12.1959 to the 5th respondent, the entire revenue records stand in the name of the 5th respondent without any encumbrance and the petitioners names have never been declared as interested persons in respect of the lands and the petitioners never filed any objection to the Tahsildar within the stipulated time.
k) In respect of unpaid sale consideration, if the petitioners have any right against the 5th respondent, it is for them to proceed against the 5th respondent and it does not mean that the petitioners have any right over the lands which are the subject matter of acquisition. It is stated that the petitioners have not explained the delay of such long period and any right of the petitioners in civil court to recover damages or any money due to them towards unpaid sale consideration does not hamper the land acquisition proceedings. It is stated that inasmuch as the judgment in LAOP was confirmed in the appeals, the writ petitions are not maintainable.
5. In the counter affidavit filed by the 5th respondent also on behalf of the respondents 6 to 12, while it is admitted that there is unpaid sale consideration to the extent of Rs.1,52,412.71 in respect of properties sold by M.Kullamma Naicker in favour of the 5th respondent by registered deed dated 23.12.1959, since the said Kullamma Naicker had doubts over the realization of the amount, the said amount was converted into secured liability and shown in the balance sheet of the 5th respondent with 4% interest per annum. It is stated that in lieu of payment of 4% interest, the petitioners were permitted to receive the lease amount from third parties who were lessees in possession of the lands of the 5th respondent company cultivating the lands by paying lease amount to the petitioners.
a) There was a family settlement entered on 5.2.1969, recognizing the unpaid balance sale consideration as secured liability and that was shown in the balance sheet of the 5th respondent company. It is also admitted that the liability had to be discharged by the 5th respondent within three years of signing the above said family settlement with interest at 4% p.a. It is stated that except such right to get back the said liability with 4% interest, the petitioners have no right in the properties.
b) It is an admitted fact that the ownership of the land was transferred to the 5th respondent. It is stated that in lieu of interest at 4% p.a. payable on the secured liability, the lands were leased out to third parties by the 5th respondent with an arrangement that the third parties should pay lease amount to the petitioners. It is stated that when once the unpaid sale consideration is reflected in the balance sheet of the 5th respondent as secured liability as on 30.6.1961, which is admitted by the petitioners, the petitioners have no right over the properties sold under the registered sale deed. Therefore, as per the land acquisition authorities, the petitioners are third parties and they are no way connected with the properties.
c) It is stated that even under section 55(4)(b) of the Transfer of Property Act relied upon by the petitioners, it is only in respect of unpaid sale price, the right for payment of 4% interest lies with the petitioners and therefore, the petitioners cannot claim any ownership over the properties except the right to recover the amount. It is stated that even under section 55 of the Transfer of Property Act, the said right is subject to the family settlement entered on 5.2.1969 and even the claim as per the said provision is hopelessly barred by limitation. The statutory charge can be enforced only within a period of 12 years and the said 12 years period has already came to an end.
d) It is stated that even under the original land acquisition proceedings during the year 1972, when possession was taken from the petitioners, the petitioners did not raise any objection from 1972 and for 30 years the petitioners kept quiet. After the family settlement dated 5.2.1969, the petitioners position got changed and they had lost the statutory charge and thereafter, their claim was only in respect of claiming interest at the rate of 4% on the unpaid sale consideration and that also got lapsed after a period of three years.
e) It is stated that the properties were leased out to third parties and as per notice of the 5th respondent dated 9.6.1960, Kullamma Naicker was authorized to collect the rent by way of lease and appropriate the same towards interest. It is also stated that when once the title to the properties was passed on to the 5th respondent under registered sale deed, the petitioners are not entitled to have any interest in the properties.
f) It is stated that the petitioners are not parties to the award made by the first respondent and therefore, there is no legal obligation on the part of the first respondent to submit a copy of the award to them. It is also stated that the petition has been filed after a long delay and from 1993 when the award was passed, the petitioners slept over the issue and filed the writ petitions only in 2003. It is not correct to state that the petitioners were not aware of the proceedings at all and the objection by the petitioners was made on 30.11.1992.
g) It is stated that the petitioners were unable to get any interim orders and the impleading petition filed by them came to be dismissed after elaborate arguments holding that the petitioners are not necessary parties in the first appeal and therefore, they have no right to file the present writ petitions. The petitioners rights are only to file a civil suit for money and in the circumstances, having failed to do so, it is not open to them to file the writ petitions.
6. Mr.T.R.Rajagopalan, learned senior counsel appearing for the petitioners would submit that the land acquisition proceedings originally initiated in 1972 had never been followed up to 1998 and even though in the original land acquisition proceedings, the petitioners were parties and notices were given, the proceedings got lapsed and there was absolutely no notice in respect of second acquisition proceedings.
a) It is his submission that when the petitioners were given notice in the original acquisition proceedings, when subsequent acquisition proceedings were initiated as per orders of the High Court, in all fairness, notice should have been given to the petitioners being the persons interested in the award proceedings. By referring to the provisions of the Land Acquisition Act, particularly section 9, wherein the words, person interested is used, it is his submission that the persons who are interested are entitled for notice and inasmuch as the notice has not been given, the entire award proceedings have to be set aside.
b) It is his submission that what was dismissed in the first appeal was only a petition for impleading the petitioners in the proceedings under section 18 of the Act and that is not a bar for the petitioners to challenge the award proceedings on the basis of legal requirements having not been followed.
c) It is his submission that as an unpaid vendor, the petitioners predecessor in title, Kullamma Naicker was a mortgagee entitled to be in possession of the properties and therefore, he got legal right over the properties and even as secured creditor, the petitioners predecessor in title was entitled to have interest over the properties and recover the money from the properties. It is submitted that the possession was taken from the petitioners and therefore, they should be deemed to be the persons interested. He would rely upon the judgment in Raja Harish Chandra Raj Singh vs. The Deputy Land Acquisition Officer [AIR 1961 SC 1500].
d) He would also insist that as per section 55 of the Transfer of Property Act, the petitioners are entitled for proper notice. It is his submission that the petitioners are not disputing the acquisition proceedings at all and they are only disputing about the award proceedings and they are entitled to be heard and no prejudice would be caused to the respondents 5 to 12 in giving opportunity to the petitioners to participate.
e) He would submit that as persons interested, the petitioners are necessary parties to the award proceedings and therefore, the award is challenged. In respect of the right of unpaid vendors lien, he would rely upon the judgment in L.Jegannath vs. The Land Acquisition Officer & Revenue Divisional Officer, Palani [2006 (2) CTC 809] and to substantiate his contention that as agreement holders, the petitioners are interested in the lands, he would rely upon the judgment in (Sair) Siva Pratapu Bhattadu vs. A.E.L.Mission [AIR 1926 Madras 307] apart from the judgment in M.Kuppuswami vs. The Special Tahsildar (L.A.) II Industrial Estate, Ambattur at Saidapet, Madras [1967 MLJ 329].
f) He would also place reliance on the judgments in Dr.G.H.Grant vs. The State of Bihar [AIR 1966 SC 237] and Sunderlal vs. V.Paramsukhdas [AIR 1968 SC 366] to substantiate his contention that 5A(2) mandatory notice should have been issued. He would rely upon the judgment in Rambhai Lakhabhai Bhakt vs. State of Gujarath [(1995) 3 SCC 752] and it is his submission that inasmuch as the petitioners are covered under section 55(4) of the Transfer of Property Act, they get a charge over the properties.
7. On the other hand, Mr.R.Thiagarajan, learned senior counsel appearing for the respondents 5 to 12 would submit that the petitioners have right only to recover the amount of lease in lieu of interest on the amount payable as unpaid purchase money and that is not attached to the properties at all. It is his submission that the petitioners were aware of the land acquisition proceedings and having participated in the original land acquisition proceedings, they cannot say that they were not aware anything about subsequent proceedings at all, especially when they are representing Kullamma Naicker who was aware of the land reforms proceedings. According to him, it is not a case in respect of right over the properties, but it is in respect of right to receive the balance sale consideration. He would submit that in the impleading petition this Court decided in detail about the rights of the petitioners and the petitioners have no more right to proceed in the writ petitions. He would also take this Court to various orders passed by this Court at various stages.
8. Learned Additional Government Pleader while adopting the arguments of Mr.R.Thiagarajan, would contend that as far as the revenue records are concerned, the records stand in the name of the 5th respondent and there is no mandatory duty on the part of the authority passing award to either give a copy of the award to the petitioners or to give any notice. The petitioners having slept over the issue for many years, cannot be heard now to question the award proceedings.
9. I have heard the learned senior counsel for the petitioners and the earned Additional Government Pleader for respondents 1 to 4 and the learned counsel for respondents 5 to 12 and given my anxious thoughts to the issues involved in this case.
10. On the factual aspects, it is clear that the lands were sold by Kullamma Naicker in favour of the 5th respondent company registered under the Companies Act,under a sale deed dated 23.12.1959. Under the sale deed executed by Kullamma Naicker in favour of the 5th respondent, the consideration in respect of properties was agreed to Rs.1,75,000/- and the 5th respondent through a resolution of the Board of Directors dated 1.8.1959, resolved to purchase the properties from the vendor and on the date of sale deed, the 5th respondent purchaser paid an amount of Rs.10,000/- towards sale consideration and earnest money for the sale deed and also agreed to pay to the vendor the balance sale consideration at annual instalments of not less than Rs.20,000/- and the balance sale consideration carried interest at 4% p.a. The relevant portion of the sale deed in that regard is as follows:
“…. Now this Indenture of Sale witnesseth that in consideration of the premises and in further consideration of the sum of Rs.10000 paid as part consideration on 1.12.1959 and the balance of Rs.165000 agreed to be paid by the purchaser to the vendor in annual instalment of Rs.20000 carrying interest at 4% per annum. The vendor hereby transfer conveys and assigns to and in favour of the purchaser all that the piece and parcel of lands situate in Balasundaram Pudachi and Ayam Pillai villages Palani Taluk and together with all belongings . ……..”
11. The sale deed also states that it is an absolute sale deed and there is no clause in the sale deed authorizing the vendor to retain possession in lieu of payment of balance sale consideration. Therefore, it is clear that under the sale deed, the petitioners are given a right to claim interest at 4% p.a. in respect of balance sale consideration. Section 55(4) of the Transfer of Property Act which is as follows:
“55.Rights and liabilities of buyer and seller.-
(1)to (3) xxx
(4) The seller is entitled-
(a) to the rents and profits of the property till the ownership thereof passes to the buyer;
(b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, (any transferee without consideration or any transferee with notice of the non-payment], for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part [from the date on which possession has been delivered].”
enables the unpaid vendor to claim a charge upon the properties in the hands of the buyer. In the absence of any stipulation in the sale deed authorizing the unpaid vendor to retain the possession of the lands, there is no doubt that the unpaid vendor by virtue of the powers conferred under section 55(4)(b) of the Transfer of Property Act is entitled to claim a charge over the property which has gone to the hands of the buyer, but the question here is, as to whether either Kullamma Naicker or the petitioners who claim to be the successors have so far exercised such right of charge.
12. To claim the money secured with a right of charge over immovable property, a period of limitation is prescribed under the schedule of Limitation Act, 1963. Under Clause 62 the period of limitation is prescribed as 12 years from the time when the money sued for becomes due. The said unpaid sale consideration is due from the date of registration of sale deed. It is not the case of the petitioners that either themselves or Kullamma Naicker have attempted to enforce the right of charge over the properties, as per section 55(4)(b) of the Transfer of Property Act, within the period of limitation prescribed under the Limitation Act. The said period of 12 years, if it is taken from the date of registration of sale deed viz., 23.12.1959, expired in 1971 itself which is well before even the first acquisition proceedings initiated by the Government for the project of construction of dam under Palar-Porunthalaru Scheme.
13. Now, the peculiar aspect of this case is, when there was a dispute regarding repayment by the respondents 5 to 12, the dispute was resolved by a family arrangement due to the reason that Kullamma Naicker himself was one of the founders of 5th respondent company which is considered to be a family company. Under the deed of family arrangement entered on 5.2.1969, between the wife of Kullamma Naicker apart from 1st petitioner and the respondents, especially the 6th respondent as one of the Directors and the dispute was also relating to the validity and genuineness of a Will stated to have been executed by Kullamma Naicker on 23.1.1968 and in the family arrangement entered after the death of Kullamma Naicker, the Liability of 5th respondent company was arrived in respect of unpaid sale consideration to the legal heirs of Kullamma Naicker at Rs.1,52,412.71 and that amount was agreed to be repaid by the respondents 5 to 12 by stating that the first petitioner herein, who was arrayed as No.2 of the family arrangement is entitled to collect lease from the lands and appropriate the same against the interest due on the said amount till the principal amount which is agreed to be paid within three years by the respondents 5 to 12. The operative portion of the family arrangement which is relevant for the purpose of this case is as follows:
” X. The liability of Rs.1,52,412.71, shown in the Balance Sheet of Narendra Dairy Farms (P) Ltd., as on 30.6.67 is a secured liability due as unpaid balance of purchase money to the late M.Kullama Naicker. The second part hereto agreed that this liability and also the unsecured liability of Rs.15,336/- as per the balance sheet of Narendra Dairy Farms (P) Ltd., is payable by them as the beneficiaries under the Will of the deceased M.Janakirama Kullama Naicker, taking over as such all the right title and interest of the deceased M.Janakirama Kullama Naicker in the said Dairy Farms (P) Ltd., under the will of the late M.Kullama Naicker this sum if payable to the minors of the first part to the document and hence this is recited in the Schedule to the document under Schedule ‘C’ item No.3.
XI. It is agreed between the parties that the amount due as per the preceding clause shall be repaid by the second part and No.2 of the first part is entitled to be collecting the lease of the lands at Balasamudram belonging to the Narendra Dairy Farms and appropriate the same for the interest due on the said amount till the principal amount is discharged within three years by the second part.”
14. Therefore, by virtue of the said family arrangement entered on 5.2.1969, the 5th respondent agreed to pay the unpaid sale consideration of Rs.1,52,412.71 to the petitioners towards the principal amount within three years and in the meantime, permitted the petitioners to receive the lease amount from the lessees in possession of the properties. The point which is relevant to be considered is even under the family arrangement dated 5.2.1969, there is no clause authorizing the petitioners either to take possession or to remain in possession of the lands sold by Kullamma Naicker on 23.12.1959. On the other hand, a reading of the family arrangement shows that the 5th respondent was having effective control over the possession of the lands sold and leased out to third parties and the petitioners were only entitled to recover the lease amount from third parties till the unpaid balance sale consideration was paid within three year period. If the principal amount viz., balance sale consideration was not paid within the period of three years from 5.2.1969, it was the right of the petitioners to recover the amount as if it was a cash due under the agreement for which the period of limitation under the Limitation Act is three years. It is not known as to whether the petitioners have taken any such steps for recovery of the amount within the period of limitation.
15. Again, the family arrangement was entered into even before the initiation of the first acquisition proceedings. In the light of the above said facts, one has to appreciate that in the first acquisition proceedings stated to have been initiated in the year 1972, in the enquiry under section 5A of the Land Acquisition Act, if notice was given to the petitioners and the wife of late Kullamma Naicker, it cannot be said to be either in recognition of their possession or ownership over the properties in the light of express admission by the petitioners that registered sale deed had already been executed by Kullamma Naicker as early as 23.12.1959 without retaining the right of possession over the lands. Admittedly, such land acquisition proceedings initiated by the authorities under the Land Acquisition Act originally in 1972 were not continued and the reason given for the same was that there was land ceiling proceedings in respect of the said lands. Kullamma Naicker who happened to be the owner of large extent of lands or the petitioners herein cannot be said to have not known about the land ceiling proceedings at all.
16. Be that as it may, when the Government initiated subsequent acquisition proceedings in the year 1990, there was absolutely no obligation on the part of the Government to give notice to the petitioners under the Land Acquisition Act. On the other hand, it is seen that the respondents 5 and 6 approached this Court not only challenging the land reforms proceedings under the Tamil Nadu Land Reforms (Fixation of Ceiling of Land) Act, 1961 but also for a direction against the Government to proceed with the acquisition of lands pursuant to the notification issued in the year 1972. That was in W.P.Nos.119 and 120 of 1974. It is seen from the order of this Court dated 9.4.1979 in the above said writ petitions filed by the respondents 5 and 6 herein against the land reforms authorities as well as land acquisition authorities that in respect of lands in issue which were the subject matter of dispute in the writ petitions, the lands were permitted to be used by the respondents 5 and 6 for dairy purposes and contrary to that, the respondents 5 and 6 were using the same for agricultural operations and it was, in the final order, this Court allowed the writ petitions filed by the respondents 5 and 6 and directed the acquisition authorities to continue with the acquisition proceedings.
17. It was, against the order of this Court in the said writ petitions, the Government filed writ appeals in W.A.Nos.677 and 678 of 1979 and the Division Bench of this Court in the judgment dated 17.9.1986, while confirming the order of the learned Single Judge, dismissed the writ appeals and held that the attempt made by the authorities under the Land Reforms Act to take possession of lands from the 5th respondent is not valid and directed the land acquisition authorities to continue the acquisition proceedings. Ultimately, the civil appeals filed against the judgment of the Division Bench also came to be dismissed by the Supreme Court on 21.10.1997 on the basis that by virtue of second acquisition proceedings, the acquisition was completed and award was passed. Obviously by referring to the award dated 10.2.1993 which is the subject matter of dispute in these writ petitions, the Supreme Court dismissed the civil appeals in Civil Appeal Nos.1285 and 1286 of 1982, filed by the Government, on the basis that reference has been sought for under section 18 of the Land Acquisition Act.
18. It was thereafter in the reference made under section 18 of the Land Acquisition Act before the Civil Court, the judgment and decree came to be passed on 23.2.2001. There is absolutely no illegally in the proceedings leading to the passing of award which was, in fact, as per the directions of this Court. The petitioners who are stated to have been given notice in the enquiry under section 5A of the Act in the land acquisition proceedings of the year 1972 cannot be said to be not aware of the said writ petitions filed by the respondents 5 and 6 at all. Even otherwise, inasmuch as the said Kullamma Naicker had already sold the properties absolutely to the respondents 5 and 6, there was no legal obligation on the part of the authorities under the Land Acquisition Act to give any notice to the petitioners at all.
19. It is not in dispute that as per section 9(1) of the Land Acquisition Act, 1894, the Collector issued public notice of the intention of the Government in taking possession of lands. Sections 9(2) and (3) of the Land Acquisition Act which are as follows:
“9.Notice to persons interested.-
(1)xxxx
(2)Such notice shall state the particulars of the land so needed, and shall acquire all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, and their objection (if any) to the measurements made under Section 8. The Collector may, in any case, require such statement to be made in writing and signed by the party or his agent.
(3)The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interest, as reside or have agents authorised to receive service on their behalf, within the revenue district in which the land is situate.”
only contemplate notice to be given to all persons interested in the lands. By virtue of the sale deed, which is absolute in nature, executed by Kullamma Naicker on 23.12.1959, if the records stood changed and transferred in the names of purchaser, it cannot be said that either Kullamma Naicker or the petitioners are interested persons in the lands. As stated above, at the risk of repetition, it has to be reiterated that either under the original sale deed executed by Kullamma Naicker dated 23.12.1959 or under the family arrangement dated 5.12.1969, the petitioners or Kullamma Naicker had never been permitted to be in possession and no interest had been given to them in respect of the lands except the right to recover the lease amount in lieu of interest at 4% p.a. on the principal amount of Rs.1,52,412.71.
20. In the land acquisition proceedings of the year 1990, by which time, the right of petitioners to enforce the charge over the properties as per section 55(4)(b) of the Transfer of Property Act having come to an end, there is nothing to presume that the petitioners have any interest over the lands at all. Therefore, the notice given to public by the Collector about the desire to take possession of lands itself, in my considered view, is a sufficient requirement of section 9 of the Land Acquisition Act and it cannot be said that there is any violation of the said provision of the Act. Under section 11(1) of the Land Acquisition Act, when the Collector conducts award enquiry, pursuant to the notice given under section 9(1) of the Act by way of public notice, if the petitioners had raised any objection, certainly the Collector would have heard and considered them. But, it is not the case of the petitioners that by virtue of notice under section 9(1) of the Land Acquisition Act, they had raised any objection before the Collector and it is also not their case that their objections were neglected by the Collector, for this Court to think about certain procedural irregularities committed by the Collector. But, inasmuch as there was no obligation on the part of the Collector to give individual notice to the petitioners, since they are not persons interested in the lands, in my considered view, there is no question of apportionment of any compensation as claimed by the petitioners, in the factual matrix of the case.
21. Again, inasmuch as the petitioners are not persons interested in the lands, there is no question of the Collector issuing notice of award to the petitioners under section 12(2) of the Land Acquisition Act and therefore, the question of applicability of section 20(c) of the Act for giving notice to the petitioners does not arise. Inasmuch as the petitioners are not persons interested in the lands, there is no question of applicability of section 18(1) of the Act to the petitioners at all. Therefore, the question of service of notice as required under section 20 of the Act as a mandatory requirement by the Court does not arise. In this regard, it is relevant to reproduce section 20 of the Land Acquisition Act which is as follows:
” Sec.20. Service of notice.- The Court shall, thereupon, cause a notice, specifying the day on which the Court will proceed to determine the objection, and directing their appearance before the Court on that day, to be served on the following persons, namely:-
(a) the applicant;
(b) all persons interested in the objection, except such (if any) of them as have consented without protest to receive payment of the compensation awarded; and
(c) if the objection is in regard to the area of the land or to the amount of the compensation, the Collector.”
22. Inasmuch as the petitioners are not persons interested in the lands as required under section 9(2) of the Land Acquisition Act, there is no legal obligation on the part of the Court to serve notice to the petitioner. Here also, it is not the case of the petitioners that they voluntarily filed petition before the Court under section 18 of the Act and the same was not considered. Even at that stage, when a reference under section 18 was made, the petitioners did not choose to appear before the Court.
23. The petitioners who have chose to state that in 5A enquiry they were allowed to participate in the original acquisition proceedings in the year 1972, after the award enquiry was conducted and reference under section 18 of the Act was made and the Civil Court passed orders in the LAOPs. against which appeals were filed by the Acquisition Officer in this Court, have for the first time chosen to file application to implead themselves as parties in C.M.P. Nos.648 and 759 of 2003 in A.S.Nos.132 and 133 of 2001. In the counter affidavit filed in the impleading petition it was the specific stand of the respondents 5 to 12 that the petitioners were not in possession of the lands and they were entitled to collect the lease amount only from the third parties cultivating the lands, in lieu of interest on the principal amount. It is, after considering the elaborate arguments, the Division Bench in the order dated 5.3.2003 passed in C.M.P.Nos.648 and 759 of 2003 in A.S Nos.132 and 133 of 2001, in categorical terms, held that the right of the petitioner was only to recover the unpaid sale consideration by initiating proceedings against the respondents and they have no title or right to question the acquisition and they have no say about the quantum of compensation. The Division Bench in the order has stated as follows:
” 9. When possession was taken from the petitioners and the dam was constructed thereafter, the petitioners’ possessory right is lost. The claim of the petitioners is that they were in possession of the land under acquisition only in lieu of the interest on the unpaid sale consideration. When the petitioners had only a lien over the unpaid sale consideration, they can proceed against the property only in respect of such claim alone. In the case of compulsory acquisition by invoking the powers of the eminent domain, the land vests with the Government or the requisitioning body, free of all encumbrances. In such circumstance, definitely the petitioner cannot have any right over the land. To exercise their right to recover the unpaid sale consideration, they need not be impleaded as party/respondents in these appeal, as they have no say in the quantum of compensation which is the subject matter of the appeals. The petitioners can recover the unpaid sale consideration by initiating the proceedings against the respondents. As the petitioners have no right or title in respect of the property under acquisition, as stated already , they have no say in respect of the quantum of compensation. When that be so, the Government cannot be forced to face the proceeding by impleading the petitioners as party/respondents.”
24. Not satisfied with the elaborate order, the petitioners filed review applications in Rev.Appln.Nos.140 and 141 of 2003 and the Division Bench again in the elaborate order dated 3.4.2006, dismissed the review applications with the following observations, which was also reported in L.Jegannath and another vs. The Land Acquisition Officer & Revenue Divisional Officer, Palani and others (2002(2) CTC 809).
” 15. In view of the above discussions as to the scope of Review, we are of the considered view that the elaborate arguments and series of case laws cited by the learned senior counsel for the review applicants pertaining to “person interested” and “sellers lien in respect of unpaid sale consideration” etc., cannot be allowed to be raised within the ambit of Order 47 Rule 1 C.P.C. Accordingly, the Review Applications failed and they are dismissed. No costs. Consequently, the connected CMPs., are closed.”
25. Admittedly, the SLP filed against the order in the review applications, was also dismissed by the Honble Apex Court in SLP (C) No.14010 of 2006 by judgment dated 1.9.2006 wherein the Supreme Court held as follows:
” We see no reason to interfere. The special leave petitions are dismissed. We, however, clarify that the writ petitions which are independently pending before the Madras High Court shall be decided on their own merits uninfluenced by any observation made in the order under challenge.”
In the light of the categorical pronouncement by the Division Bench of this Court, it is not possible to accept the contention of the learned senior counsel appearing for the petitioners that the matter has to be agitated once again to ponder over the term, person interested and so on.
26. The writ petitions filed after nearly 27 years of passing of judgment by the Civil Court, challenging the award in the land acquisition proceedings of the year 1993, certainly cannot now be permitted not only on the ground of laches and inordinate delay but also on the ground that the matter has been dealt with elaborately by the Division Bench of this Court more than once.
27. In the Municipal Corporation of Greater Bombay vs. The Industrial Development Investment Co., Pvt., Ltd., and others [AIR 1997 SC 482] while dealing with the land acquisition and the delay in filing the writ petition, the Supreme Court held as follows:
” 29. It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches.”
28. It is relevant to extract the observation of the Supreme Court in Executive Engineer, Jal Nigam Central Stores Division, U.P. vs. Suresha Nand Juyal alias Musa Ram (deceased) by LRs. And others [(1997) 9 SCC 224]:
” 5. Obviously, after consideration of all the objections and rejection thereof, declaration under Section 6 was published. As stated earlier, the award was made and symbolic possession was taken on 17-12-1988. Under the circumstances, the land stood vested in the State free from all encumbrances. After the proceedings had become final, the writ petition came to be filed on 19-5-1989. The mere fact that due to lapse of time no action was taken after the filing of the writ petition, does not give ground for interference. The further fact that public purpose must have been served by constructing the quarters for the officers elsewhere, is without any substance. The mere fact that on account of the pending litigation, no construction was made, is no ground to say that notification under Section 4(1) was vitiated by any error of law; equally, increase in the prices of the lands is no ground.”
29. The judgment in Raja Harish Chandra Raj Singh vs. The Deputy Land Acquisition Officer and another [AIR 1961 SC 1500] on which reliance was placed by the learned senior counsel for the petitioners, especially para-5 which is as follows:
” 5. In dealing with this question it is relevant to bear in mind the legal character of the award made by the Collector under Section 12. In a sense it is a decision of the Collector reached by him after holding an enquiry as prescribed by the Act. It is a decision, inter alia, in respect of the amount of compensation which should be paid to the person interested in the property acquired; but legally the award cannot be treated as a decision; it is in law an offer or tender of the compensation determined by the Collector to the owner of the property under acquisition. If the owner accepts the offer no further proceeding is required to be taken; the amount is paid and compensation proceedings are concluded. If, however, the owner does not accept the offer Section 18 gives him the statutory right of having the question determined by court, and it is the amount of compensation which the court may determine that would bind both the owner and the Collector. In that case it is on the amount thus determined judicially that the acquisition proceedings would be concluded. It is because of this nature of the award that the award can be appropriately described as a tender or offer made by the Collector on behalf of the Government to the owner of the property for his acceptance. In Ezra v. Secretary of State (ILR 30 Cal 36 at p.86) it has been held that the meaning to be attached to the word award under Section 11 and its nature and effect must be arrived at not from the mere use of the same expression in both instances but from the examination of the provisions of the law relating to the Collectors proceedings culminating in the award. The consideration to which have referred satisfy us that the Collector acts in the matter of the enquiry and the valuation of the land only as an agent of the Government and not as a judicial officer; and that consequently, although the Government is bound by his proceedings, the persons interested are not concluded by his finding regarding the value of the land or the compensation to be awarded. Then the High Court has added that such tender once made is binding on the Government and the Government cannot require that the value fixed by its own officer acting on its behalf should be open to question at its own instance before the civil court. The said case was taken before the Privy Council in Ezra v. Secretary of State for India (ILR 32 Cal 605 (PC) and their Lordships have expressly approved of the observations made by the High Court to which we have just referred. Therefore, if the award made by the Collector is in law no more than an offer made on behalf of the Government to the owner of the property then the making of the award as properly understood must involve the communication of the offer to the party concerned. That is the normal requirement under the contract law and its applicability to cases of award made under the Act cannot be reasonably excluded. Thus considered the date of the award cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his office; it must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position then the literal and mechanical construction of the words the date of the award occurring in the relevant section would not be appropriate.
is of no help to the case of the petitioners at all. It is true that the award passed by the Collector is only an offer and that has to be communicated to the parties, but the question is, as I have discussed above, as to whether the petitioners as parties interested are entitled for notice or not, which, in my considered view, is to be answered in negative.
30. Equally, the judgment relied upon by the learned senior counsel for the petitioners in Rambhai Lakhabai Bhakt vs. State of Gujarat [(1995) 3 SCC 752] does not advance the case of the petitioners.
31. Inasmuch as the petitioners cannot be said to be persons interested within the meaning of section 9(2) of the Land Acquisition Act and other provisions, since on the factual scenario the petitioners interest was only to get interest on the unpaid sale consideration, the various judgments viz., (Sair) Siva Pratapu Bhattadu vs. A.E.L.Mission [AIR 1926 Mad 307], Dr.G.H.Grant vs. The State of Bihar [AIR 1966 SC 237], Sunderlal vs. V.Paramsukhdas [AIR 1968 SC 366] and M.Kuppuswami vs. The Special Tahsildar (L.A.) II Industrial Estate, Ambattur at Saidapet, Madras [1967 MLJ 329] on which reliance was placed have no relevance to the facts of the present case.
In such view of the matter, looking into any angle, I am of the considered view that the petitioners are not entitled for the relief claimed in the writ petitions and there is nothing for this Court to interfere with the impugned award and the consequential judgment passed by the Civil Court under section 18 of the Land Acquisition Act. Accordingly, the writ petitions fail and are dismissed. No costs. Connected miscellaneous petitions are closed.
Kh
To
1.The Land Acquisition Officer
& Revenue Divisional Officer
Palani.
2.The Chief Engineer, PWD
Pollachi Region
Office at Coimbatore.
3.The Superintending Engineer
PWD, Palani.
4.The Executive Engineer, PWD
Nanganjiyar Reservoir Project
Palani