The Special Tahsilda... v. T. Nagendran & 8 Oth...

Common Judgment — A.S Venkatachalamoorthy, J.

The notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter called ‘Act’) was issued in the year 1984, proposing to acquire 196.44 acres of land in Thathiengarpatty village and Tekkampatty village in Omalur Tajuk, Salem District for the benefit of Tamilnadu Magnesite Limited (TANMAG), Salem for setting up rotary kiln for manufacture of dead burnt magnesite for installation of benefication plant and manufacture of high quality refractory bricks. After conducting an enquiry under Section 5, declaration under Section 6 was made during the year 1984-1985. In fact, some of the land owners voluntarily surrendered possession even prior to Section 4(1) notification i.e, prior to 1984. Suffice to mention for the purpose of this case, process of taking possession of entire area referred supra was completed in the year 1986.

2. An award enquiry was held and the Land Acquisition Officer passed as many as ten awards viz., Award Nos. 1/1986 to 9/1986 and 11/1986. fixing compensation for the said lands. The Land Acquisition Officer fixed compensation at Rs. 18,000/- per acre for irrigated dry lands and Rs. 15,000/- per acre for unirrigated dry lands. The compensation was also fixed by him in all cases where there are wells, structures, trees, etc. Not being satisfied with such fixation, land owners exercising their option under Section 18 of the Act, sought reference to the Court. The references were numbered as L.A.O.P Nos. 22/1992 to 26/1992, 41/1992, 7/1993 to 9/1993 and 12/1994 on the file of Sub Court, Salem. The learned Principal Sub Judge, Salem, after elaborately considering case of respective parties, disposed of the said original petitions by a common order in and by which fixed the compensation at Rs. 1,75,000/- per acre uniformly. Aggrieved by such order of the learned Principal Subordinate Judge, Salem, the Land Acquisition Officer, viz., Tahsildar TANMAG preferred appeals before this Court in A.S Nos. 134 to 140 of 1997. Along with the appeals, petitions for stay of the Judgment of the reference Court were also filed (i.e) C.M.P Nos. 1665 to 1674 of 1997. A learned single Judge of this Court granted stay on condition that the appellants in the appeal shall deposit 50% of the enhanced compensation. The Court also permitted the Claimants/Land Owners to withdraw 50% of the amount out of the said deposit with security and the remaining 50% of the amounts without security. The appellants, being aggrieved by the said order, moved the Division Bench of this Court by filing L.P.A Nos. 178 to 187 of 1997. By an order dated 10.12.1997, the Division Bench of this Court extended time for deposit of 50% of the amount by 30 days without granting stay of the order of the learned single Judge. As against the said order, the appellants filed SLP Nos. 147 to 158 of 1998 on the file of Supreme Court of India. The Supreme Court passed final orders directing early disposal of the appeals A.S 134 to 147 of 1994 and till then disbursement of the amounts awarded to the Claimants was stayed. On 31.1.1998, the TANMAG deposited a sum of Rs. 2 Crore 60 Lakhs being a portion of the compensation. Subsequently on 3.3.2998, a further sum of rupees one crore was deposited. The appeals A.S 134 to 143 of 1994 were heard by a Division Bench of this Court and the market value of the lands acquired was fixed at Rs. 75,000/- per acre by the Judgment dated 23.1.2001 Being aggrieved by the said Judgment, the appellants filed SLP No. 11744 to 11753 of 2001 before the Supreme Court of India, but however, the same were dismissed on 30.7.2001 It is stated that the respondents/land owners have also filed SLP claiming enhanced compensation, but however the learned counsel for the land owners is not in a position to say whether the said petitions are pending or already disposed of.

3. In November, 2001, applications viz., I.A 102 to 111 of 2001 in L.A.O.P.22 of 1992 etc (other LAOP numbers already furnished supra) under Order XXXIX Rule 1 and section 151 of Code of Civil Procedure praying the Court to grant an order of ad interim injunction restraining the respondents/land owners from withdrawing any amount deposited in the Court, by the second appellant in the respective LAOPs for a period of three months. In the affidavit filed in support of the said applications, it is stated that the lands acquired were not fully used by the second appellant till then and that out of 196.44 acres, a small extent has been developed by the second appellant and the other lands are remaining idle. It is also stated therein that the major portion of the lands acquired are not useful to the Company and the Board of Directors also passed a resolution that the surplus lands can be returned to the owners and that the office of the second appellant is working out the details of extent of lands to be retained and the extent of surplus lands to be returned to the owners. A specific mention is made therein that under Section 48B of the Act (Tamilnadu Amendment) there is a provision for the return or transfer of the lands to the original owners. Pending decision, if the respodents/land owners are permitted to withdraw the amount deposited by the Second appellant, it will be impossible to recover the moneys from them when ultimately surplus lands are returned to them. According to the said affidavit, the respondents/land owners have already withdrawn the amount awarded by the Land Acquisition Officer. It is further submitted that the details of the extent of lands to be retained by the second appellant and the surplus lands to be returned to the owners are being worked out and within a period of three months a statement will be filed before this Court and necessary action is to be taken udner Section 48 of the Act.

4. Respective respondents/Land owners resisted the applications by filing separate counter statements. But inasmuch as the defence set out in those statements are virtually same, we intend to refer only to the counter statement filed in I.A 108 of 2001 in LAOP 23 of 1992. It is contended therein that none of the reasons stated in the affidavit attract any of the ingredients of Order XXXIX Rule 1 of the Code of Civil Procedure, apart from the fact that the same is not maintainable. It is also stated therein that the entire lands are rendered unfit for any use of land owners or anybody else except the second appellant. The respondents made it clear that they are not willing to repay the amounts paid by the first appellant and take back the lands. Further contention of the respondents is that after taking possession of the entire lands, second appellant entered into an agreement with Khaitan & Co. and 100 acres of lands are with them and that Company has even taken possession of considerable lands and started construction of buildings for the said plant. In fact, a temple has also been constructed by the said Company in one acre of land. But however, since the said Company could not perform their part of contract, that proposal did not fructify. It is also the case of the respondent that the appellants are playing with the lives of hundreds of persons who have lost their properties in the mala fide acquisition, in the name of public purpose. There is yet another contention in the statement that just like the lands were acquired compulsorily, they cannot be returned to the previous owners at the whims and fancies of the beneficiaries and passing of resolution by the Board of Directors of the Company cannot entitle the Company or the Government to compel the previous owners to take back the lands acquired while they are not willing to repay the amount paid by the first appellant and take back the lands. With reference to Section 48(B) of the Act, which has been introduced only under Tamilnadu Act XVI of 1997, since possession of all lands of the respondents were taken in the year 1983/1986 itself, and acquisition proceedings were completed long back, Section 48(B) cannot be invoked because the section is not retrospective in nature. The respondents made it clear that even if the Government takes a decision to retransfer the lands to the respondents, the respondents are not willing to repay the compensation amount paid by the first appellant and take back their lands.

5. The appellants filed a reply contending that it is not correct to state that the respondents/land owners are put to serious hardships since second appellant provided employment to 86 members of the families of the group of owners. It is also stated that even if respondents are not able to return the compensation, the second appellant is prepared to forego it and in fact the Board of Directors of the second appellant also passed resolution on 1.2.2002 in this regard. With reference to the agreement with Khaitan & Co it is stated that the real reason for not implementing the projects is mentioned in the two Government Orders, which are self-explanatory. As far as Section 48(B) is concerned, it is claimed that the willingness of the land owners to take back the lands is not required. The claim that the second appellant made the lands unfit for any use has been categorically denied. It is contended that an extent of 99.60 acres are not required and that major portions are virgin lands.

6. The learned Subordinate Judge, after considering the entire matter dismissed those applications for the following reasons.

(a) the present applications are filed not by the Government, which alone can invoke Section 48(B) of the Act;

(b) the land owners/claimants are not willing to refund the money;

(c) the proceeding has come to a finality;

(d) the appellants have by putting up superstructure have altered the physical features of the land;

(e) even till enquiry i.e, after lapse of nearly 16 years, appellants have not shown details of the lands to be retained by them and the surplus lands that can be returned to the respondents/land owners, which would show they have not come to Court with clean hands; and

(f) Respondents/Land owners have not filed any cheque petition to withdraw the amount in the Court deposit.

7. Before this Court, the learned Special Government Pleader apart from reiterating its stand about which we have already referred to, submitted that out of the 110 persons, whose lands have been acquired, only 65 persons filed applications for vacating injunction which would show at least remaining 32 persons are ready and willing to take back their lands and pay back the money. Section 53 of the Act clearly lays down that the provisions of Code of Civil Procedure would apply in so far as they are not inconsistent with anything contained in the Land Acquisition Act and shall apply to all proceedings before the Court under the Act and that being so, reference Court can very well invoke section 151 of Code of Civil Procedure and grant relief that is sought for. In this regard, learned counsel also referred to the decision of the Supreme Court reported in JT 2001 (3) SC 240 (Anil Sood v. Presiding Officer, Labour Court Ii., Labour Court II) and submitted that after passing of the award the Court will not become functus officio and hence the reference Court functioning under the Act is a Court and can exercise the powers conferred under Code of Civil Procedure. According to the counsel, the relevant date is the date on which the Government takes a decision and not the date when the land vested with the Government.

8. The learned Senior Counsel appearing for the respondents inter alia would contend that once the Government passes award and takes possession, the lands vest with the Government. From that date on wards, the Government is the absolute owner of the property. Thereafter the Government cannot withdraw from the acquisition of any land except under Section 49(B) of the Land Acquisition Act. According to the said provision, the Government may transfer such land to the original owner who is willing to repay the amount paid to him under the Act. But coming to the present case, first of all, the said provision will not apply as that Act came into force in 1996, whereas the vesting took place even in the year 1986. Secondly, land owners are not willing to repay the amount paid to them. Above all, it is contended that the Subordinate Judge's duty and power are confined vis-a-vis the provisions contained in Sections 11, 18, 20 to 23 and he would not traverse beyond his powers and that being so, it would not be possible for him to consider the present application filed under section 151 of Code of Civil Procedure without considering the provisions of Section 48(B).

9. Under Section 6 of the Land Acquisition Act, the appropriate Government makes known its decision to acquire lands which is needed for a public purpose. Thereafter, under Section 9(1), the Collector causes public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him. A enquiry is conducted and award is passed by the Collector under Section 11 of the Act. Section 16 of the Act makes it clear that when the Collector makes an award under section 11, he may take possession of the land which shall vest with the Government free from all encumbrances. In case of urgency whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1) take possession of any land needed for public purposes. Such land shall thereupon vest absolutely in the Government, free from all encumbrances.

10. From the above provisions, it is clear that after passing of the award when possession is taken, the land vests with the Government absolutely. In the second type of case, where emergency provision is inducted, even without passing of an award, on the expiration of 15 days from the publication of notice mentioned under Section 9(1), possession is taken and vesting takes place. Once vesting is complete, there is no question of Government withdrawing from the acquisition of any land and this is made clear in Section 48(1) of the Act. (Please refer: 1970 (2) SCC 149 (Lt. Governor of H.P v. Sri Avinash Sharma); AIR 1975 SC 1767 (B.N Bhagde v. M.D Bhagwat); 1995 (6) SCC 31 (Awadh Bihari Yadav v. State of Bihar); 1997 (9) SCC 132 (Mohan Singh v. International Airport Authority of India)).

11. The learned counsel for the appellants contended that Section 48(2) clearly lays down that whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, which would only mean the Government can withdraw from acquisition of any land even after vesting.

12. This submission of the learned counsel for the appellant cannot be accepted since the provision of Section 48(2) has to be read subject to and along with Section 48(1), or in other words, Section 48(2) only lays down that in cases where the vesting has not taken place, i.e, Government has not taken possession, the Government can withdraw any land by invoking section 21 of the General Clauses Act and pay the compensation for the hardship caused to him, together with cost reasonably incurred by him. The power of the Government to issue notification would include the power to amend, vary or rescind the said notification as laid down in section 21 of the General Clauses Act, 1897. At this juncture, it would be relevant to point out the decision of the Supreme Court reported in AIR 1966 SC 1593 (State of M.P v. Vishnu Prasad). In paragraph 19 of the Judgment the Court held thus,

“… Section 48(1) confers a special power on Government of withdrawal from acquisition without cancelling the notifications under Ss. 4 and 6, provided it has not taken possession of the land covered by the notification under S. 6. In such circumstances the Government has to give compensation under S. 48(2). This compensation is for the damage suffered by the owner in consequence of the notice under S. 9 or of any proceedings thereafter and includes costs reasonably incurred by him in the prosecution of the proceedings under the Act relating to the said land. The notice mentioned in sub-s.(2) obviously refers to the notice under S. 9(1) to persons interested. It seems that S. 48 refers to the stage after the Collector has been asked to take order for acquisition under S. 7 and has issued notice under S. 9(1). It does not reler to the stage prior to the issue of the declaration under S. 6. Section 5 says that the officer taking action under S. 4(2) shall pay or tender payment for all necessary damage done by his acting under S. 4(2). Therefore, the damage if any caused after the notification under S. 4(1) is provided in S. 5. Section 48(2) provides for compensation after notice has been issued under Section 9(1) and the Collector has taken proceedings for acquisition of the land by virtue of the direction under S. 7. Section 48(1) thus gives power to Government to withdraw from the acquisition without cancelling the notifications under Ss. 4 and 6 after notice under S. 9(1) has been issued and before possession is taken. This power can be exercised even after the Collector has made the award under S. 11 but before he takes possession under S. 15. Section 48(2) provides for compensation in such a case. …”

13. The learned counsel appearing for the land owners contended that the appellants have filed the applications before the Reference Court under Order XXXIX Rule 1 and 2 read with section 151 of Code of Civil Procedure praying the Court to pass an order restraining the land owners by an ad interim injunction from withdrawing any amount that are lying in the Court deposit for a period of three months, whereas such a petition is not maintainable in the sense, the Reference Court has no power even to consider the prayer. The learned counsel appearing for the appellants inter alia would contend that Section 53 of the Act makes it clear that the reference Court can invoke the provisions of Code of Civil Procedure so far as they are not inconsistent with anything contained in the Act and that being so, the Court has certainly power to invoke Order XXXIX Rule 1 and 2 of the Code. Alternatively, the learned Government Pleader would contend, in any event the court can invoke Section 151 of the Code and pass appropriate orders in the interest of justice.

14. The Supreme Court of India has clearly ruled that the Land Acquisition Act is a self-contained code. Of course, Section 53 of the Act is to the effect that the provision of CPC shall apply to all proceedings before the Court so far as they are not inconsistent with anything contained in the Act. What is to be borne in mind foremost is, as to what is the role of the Subordinate Court, which is a reference Court. The power and jurisdiction of the Court is limited. In this context, the ruling of the Supreme Court reported in (1995) 3 SCC 723 (Balram Chandra v. State of U.P) can be usefully referred to. In that case, the Supreme Court had an occasion to consider a case where the District Judge declared the notification under Section 4(1) and the declaration under Section 6 as null and void. While considering it, the Supreme Court ruled as under:

“… His duty and power are confined vis-a-vis the provisions contained under Sections 11, 18 and 20 to 23 and he would not traverse beyond his power.”

So, only for the purpose of exercising its power as indicated above, the Court can invoke the procedures of Code of Civil Procedure so long they are not inconsistent with the provisions of the Land Acquisition Act. That apart, it has to be pointed out that for the purpose of considering the prayer made in the applications, the Subordinate Court viz., reference Court has to necessarily refer to Section 48(B) of the Act and find out whether the appellants have made out a prima facie case when alone the reference Court can grant the relief sought for. As already pointed out, the reference Court cannot traverse beyond its power by looking into the provisions of Section 48(B) and examine whether the appellants have made out a case or in other words, even if section 151 can be invoked by the reference Court, the same can only be for the purpose of exercising its powers conferred under Sections 11, 18, 20 to 23 and not beyond that. Certainly in the case on hand, the reference Court cannot invoke section 151 and examine the relief that is sought for.

15. Even assuming for a moment that the reference Court can entertain the application to consider the prayer, the question would arise for consideration as to whether the application has been properly made and whether the appellants have made out a prima facie case, which alone would enable the Court to grant the relief. If one looks at Section 48(B) of the Act, which has been inserted by the Tamilnadu Amendment Act XVI of 1997, it clearly lays down that the first and foremost requirement is the satisfaction by the State Government. But as far as the present case is concerned, these applications are filed by the Land Acquisition Tahsildar of the Requisitioning Body. There is nothing to show that the State Government examined and satisfied itself that the lands vested in the Government are not required for the purpose for which they were acquired. There is not even a pleading in the affidavit. No material has been placed before the Court in this regard.

16. This Act came into force in the year 1997. Admittedly, vesting of the lands with the State Government took place during 1983/1984 mostly and in the remaining one or two cases in the year 1986. In the Act, there is nothing to show that it is retrospective in operation. Of course, learned Government Pleader would contend, that the relevant date is the date when the State Government considers and satisfies and not the date when the land vested with the Government. According to the Government Pleader, the Government decided only after 1997 that being so the provisions of the Section can be applied to the instant case. We are not able to accept this submission. Admittedly, the land vested with the Government way back in the year 1984 in most of the cases and in one or two remaining cases in 1986 (i.e) about 16 years before. The crucial date for consideration is the date when the lands vested with the Government and not the date when the Government considered and decided. Or in other words, Section 48(B) cannot be applicable only in respect of the cases where the acquired lands vested with the Government after the said amendment Act XVI of 1997 came into force. We are of the view that Section 48(B) of the Act would not be available for the Government to be invoked.

17. Even assuming that the said section would be available and the Government can invoke the same, the question would be whether all the conditions contemplated in the said section have been complied with. In this case, after Land Acquisition Officer passed the award, the compensation amount was paid to the respective land owners. Since the land owners sought reference under Section 18 of the Act, the matter was referred to Civil Court for fixing the market value. The reference Court enhanced the value, but the same has been brought down to some extent by the High Court and the same has been confirmed by the Supreme Court and the proceedings have reached a finality long back. Pursuant to the order of the Court, it appears the appellants have deposited roughly Rs. 3.60 crores or so before the reference Court and the same is still lying in the deposit. The appellants would contend that the section contemplates transferring lands to the willing owner, who is willing to pay the amount paid to them. The stand of the appellant is that in fact, they are not requiring the land owners to return back the amount whatever they have received and that being so, once the Government decides to transfer the land back to the original owners, that is the end of the matter and there can be no impediment. We find it rather difficult to accept this submission. Even though, appellants would say they do not want the land owners to return the amounts paid to them, they are not willing to say that the amounts in Court deposit roughly Rs. 3.60 crores also can be taken by the land owners. The amount in Court deposit is the amount belonging to the land owners and as already pointed out, the proceedings have reached a finality and the appellants in fact owe some more amount to the land owners over and above what is in the Court deposit. The contention that the words “original owner, who are willing to repay the amount paid to them” cannot refer to the amount now in the Court deposit, cannot be accepted. Even apart from that, if one reads the Section 48(B) carefully, what is evident and clear is that the words “willing to repay” would imply the land owners/Claimants willing to take back the lands. As already stated, the respondents/land owners are not willing to take back the lands. Or in other words, the provision will apply only to the Claimant willing to take back the lands and the State cannot thrust or compel the land owner to take back the land even if it is prepared to forego the amount already paid to the land owners. Section 48(B) should be understood in the light of Section 48(1) and it cannot go contra to it.

18. Above all, it has to be noted that the applications were filed before the reference Court in November 2001 praying for an ad interim injunction from withdrawing any amount with the Court deposit for three months. The said period expired in March, 2002. Till date the Government has not passed any orders, even assuming for a moment for the purpose of argument it can do so under Section 48(B) of the Act. That being so, it can also be said that nothing survives for consideration in these appeals.

19. The learned Special Government Pleader would state that in respect of an area of about 9.42 acres or so, the respective land owners have given willingness letter to take back the lands and refund the amount whatever they have received. In these appeals we have not decided about those cases. It is up to the appellants and respective land owners to come to any understanding settlement.

20. In this view of the matter, the above appeals are dismissed. No costs. Consequently, connected C.M.Ps and V.C.M.Ps are also dismissed.

VCJ/VCS