IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 23/12/2005
Coram
The Hon'ble Mr.Justice R.BALASUBRAMANIAN
and
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
WA No.2584 of 2002
and WA Nos., 2585, 2586 of 2002
W.A.M.P.Nos.4374, 4375, 4376 of 2002
N.D.Ramanujam ... Appellant in W.A.2584/2002
N.D.Rangan ... Appellant in W.A.2585/2002
N.D.Raghavan ... Appellant in W.A.2586/2002
-Vs-
1. The State of Tamil Nadu,
rep.by its Secretary to Government,
Revenue Department,
Fort St.George,
Chennai 600 009.
2. The Secretary
Housing and Urban Development Department,
Fort St.George,
Chennai 600 009.
3. The Collector of Madras,
Chepauk,
Chennai 600 005.
4. The Special Tahsildar (L.A-III),
Tamil nadu Housing Board Scheme,
Nandanam,
Chennai 600 035
5. The Executive Engineer and Administrative Officer,
K.K.Nagar Division,
T.N.H.B., Ashok Nagar,
Madras 83. ... Respondents in all appeals
Writ appeals filed under Clause 15 of the Letters Patent, against the
common order of the learned single Judge dated 31.7.2002 made in
W.P.Nos.15453/1995, 15455/1995 and 15454/1995 respectively.
:COMMON JUDGMENT
(Judgment of the Court was made by N.PAUL VASANTHAKUMAR, J.)
These writ appeals are filed against the common order passed by the
learned single Judge in W.P.Nos.15453 to 15455 of 1995 dated 31.7.200 2. The
appellants/writ petitioners, in their respective writ petition, challenged the
Award dated 19.8.1994, passed under the Land Acquisition Act, 1894. The
learned single Judge negatived the contentions of the writ petitioners and
consequently dismissed the writ petitions, against which the present writ
appeals are preferred.
2. (a) Mr.G.Masilamani, learned Senior Counsel appearing for
the appellants/writ petitioners made two legal submissions. Firstly the
learned Senior counsel contended that the Land Acquisition Officer, who passed
the Award, failed to follow the procedures contemplated under Section 9(2) of
the Land Acquisition Act in respect of giving 15 days time to appear for the
award enquiry. The second contention is that prior approval was not obtained
by the Officer from the appropriate Government or of such officer as the
appropriate Government may authorise in this behalf, since the compensation
amount in each of the Award is more than Rs.10/- lakhs. The learned Senior
Counsel further submitted that Section 4(1) notification was issued on
30.7.1987; Section 6 declaration was published in the gazette on 14.9.1988;
local publication was made on 16.9.1988; and a notice under Section 9 and 10
was issued on 9.3.1990. It is further submitted that the acquisition
proceedings were challenged on 24.4.1990 by filing W.P.No.5375 and 5 376 of
1990 and an interim stay from this Court was obtained on 30.4.1990. This
Court dismissed the said writ petitions on 5.4.1994.
(b) The learned Senior Counsel argued that on 11.8.1994, notice
under Sections 9 and 10 of the Land Acquisition Act, for award enquiry was
issued with a direction to appear for award enquiry on 18.8.1994 and on
18.8.1994, a counsel appeared on behalf of the writ petitioners and prayed for
time, but however, award was passed on 19.8.1994. According to the learned
Senior Counsel, as such the notice issued to appear for award enquiry, giving
less than 15 days time, is vitiated, as it is in contravention of section 9(2)
of the Land acquisition Act. The appellants were not given sufficient time to
effectively represent in the award enquiry, which caused prejudice to the
appellants.
(c) In support of his second contention, the learned Senior
Counsel drew our attention to ground (c) raised in the affidavit filed in
support of the writ petitions, which reads as follows,
“The approval of the appropriate Government has not been accorded
which is apparent from a perusal on the Award by its conspicuous absence. The
prior approval of the appropriate Government is to be obtained within the
statutory period prescribed under first proviso to section 11(1) of the Land
Acquisition Act and the Award is lapsed if no approval is obtained.”
This is one of the common ground raised in all the writ petitions, against
which the present writ appeals are preferred.
3. Mr.S.Kandasamy, learned Special Government Pleader pointed out
the defence raised in paragraph 13 of the counter affidavit that the award was
passed by the Land Acquisition Officer only after getting approval of the
Government in each stage, no specific date is mentioned in the counter
affidavit with regard to the date on which the approval from the competent
authority was obtained prior to passing of the award on 19.8.1994.
4. Among the two points raised for consideration in these writ
appeals, first we take up the second point.
5. Proviso to Section 11(1) of the Land Acquisition Act clearly
states that no award shall be made by the Collector under this subsection
without the previous approval of the appropriate Government or of such officer
as the appropriate Government may authorise in this behalf. It is further
stated that it shall be competent for the appropriate Government to direct
that the Collector may make such award without such approval in such class of
cases as the appropriate Government may specify in this behalf. The
appropriate authority to approve the award is notified in G.O.Ms.No.2003,
Revenue, dated 30.12.1984, in which it is stated that the Commissioner of Land
Administration has to approve every award, in which the total compensation
exceeds Rs.10/- lakhs.
6. The learned Single Judge, as regards the prior approval of the
Commissioner of Land Administration, held in the order that the learned
Special Government Pleader produced the original file No.Pa.Mu/2165 7/89,
dated 29.5.1990 from the Office of the Commissioner, Land Administration and
observed that after going through the file it is seen that the Note Order was
signed by the Special Commissioner and Commissioner of Land Administration and
in the copy communicated to the District Collector, the same was signed by the
lower officer. After observing so, the learned Single Judge came to the
conclusion that the Award in question got the prior approval of the
Commissioner of Land administration as per Section 11(1) of the Act.
7. The learned Senior Counsel for the appellants reiterated the
above point and requested this Court to peruse the file to find out as to when
actually the prior approval was given as the prior approval could have be
given on 18.8.1994 or on 19.8.1994 only.
8. On the basis of the above submission, this Court directed the
learned Special Government Pleader to produce the file, for which the learned
Special Government Pleader submits that he has received a communication from
the Government that the said file was destroyed on 2.6.2003 itself, after the
passage of ten years, as a routine office procedure. The said submission of
the learned Special Government Pleader is hereby recorded. It is needless to
point out at this juncture that the writ petitions challenging the award was
filed in September, 1 995 and the writ petitions were disposed of by the
learned Single Judge on 31.7.2002. The writ appeals were filed on 20.8.2002
and admitted on 22.8.2002. Even according to the learned Special Government
Pleader, the file was destroyed on 2.6.2003, that is, long after the admission
of the writ appeals. Hence the non-production of the file for perusal of this
Court to verify the actual date of prior approval of the Commissioner of Land
Administration is to be taken as an adverse inference, as the date of prior
approval of the Commissioner of Land Administration is not stated or disclosed
anywhere for satisfying the compliance of Section 11(1) of the Act.
9. In view of the above said fact and as there is no record to
show that the prior approval had in fact been obtained before passing the
award dated 19.8.1994, clearly established the failure on the part of the
respondents in not following the mandatory requirements under section 11(1) of
the Land Acquisition Act.
10. (a) The learned Senior Counsel relied on 1999 (III) CTC
715 (T. Paramaraj v. State of Tamil Nadu), wherein a learned Single Judge of
this Court in para 5 held that as per the first proviso to section 11 of the
Land Acquisition Act, before passing of an award, prior approval of the
appropriate Government or such authority as prescribed, is a mandatory one.
In that case, the approval was given by an incompetent authority, namely, the
District Revenue Officer. The said approval was not considered as a valid
approval and consequently this Court quashed the award.
(b) In yet another decision relied on by the learned Senior
Counsel reported in 2001(3) Law Weekly 518 (Venkatesan P. & Others v. The
Government of Tamil Nadu & Others), another learned Single Judge of this Court
held that prior approval of the award, if the amount exceeds Rs.10 lakhs, is
mandatory. In that case as the prior approval having not been obtained as
required under section 11(1) of the Land Acquisition Act, the award was
declared as null and void and the same was set aside.
11. As stated supra, since the respondents have not proved the
prior approval of the award dated 19.8.1994 by the Commissioner of Land
Administration, which is a mandatory one as per Section 11(1) of the Land
Acquisition Act, the impugned award No.1 of 1994 is liable to be set aside and
is accordingly set aside. In view of our above findings and consequential
setting aside of the award dated 19.8.1994, this Court is of the opinion that
the first point raised by the learned Senior Counsel need not be taken up for
consideration.
12. In the result, the writ appeals are allowed by setting aside
the common order of the learned single Judge dated 31.7.2002 and the writ
petitions are allowed.
Index : Yes.
Website : Yes.
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