M/s.Natesan & Co. v. Union of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDated.: 26.11.2009CORAM:THE HONOURABLE MR. JUSTICE M.JEYAPAULSecond Appeal No.1066 of 19951.Union of India rep. by Chief Secretary to Government of Pondicherry.

The Lt. Governor rep. by Secretary to Government, Revenue Department, Pondicherry.

The Deputy Collector (Land Acquisition), Pondicherry. .. Appellants/Defendants-Vs-M/s.Natesan & Co. rep. by its Managing Director, Illampooranam, No.30, 1st Street, Thirumurthi Nagar, Pondicherry. .. Respondent/PlaintiffAPPEAL filed under Section 100 of Code of Civil Procedure against the judgment and decree, dated 4.10.1993 in A.S.No.124/1991 on the file of the Principal District Judge at Pondicherry, reversing the judgment and decree dated 25.4.1991 in O.S.No.65/1990 on the file of the Inspector of Processes-cum-Additional District Munsif at Pondicherry. For Appellants :Ms.N.Mala. Additional Government Pleader, PondicherryFor Respondent : Mr.V.Ravichander for Mr.T.R.RajaramanJ U D G M E N TThe defendants are the appellants herein. The plaintiff, who is the respondent herein, filed a suit seeking a direction to the defendants by way of Mandatory Injunction to pass an Award in respect of the suit properties which belong to the plaintiff and acquired by https://hcservices.ecourts.gov.in/hcservices/ the defendants in accordance with the provisions of the LandAcquisition Act.

The trial court having found that the suit property was already surrendered by the plaintiffs to the Pondicherry TownPlanning Authority and that the possession of the suit property was taken only from the Town Planning Authority by the defendants, it hasheld that the question of payment of any compensation to the https://hcservices.ecourts.gov.in/hcservices/ plaintiffs would not arise. The Trial Court also observed that there was some latches on the part of the plaintiff to approach the Courtchallenging the acquisition proceedings initiated by the 3rddefendant. The trial court ultimately dismissed the suit filed by the plaintiff.

The First Appellate Court having found that Ex.B.2 is onlya Minute of Approval Proceedings and not the final approval proceedings, chose to grant the relief as prayed for by the plaintiff. Referring to the question of limitation, the FirstAppellate Court observed that there had been several correspondence between the litigating parties and that therefore, the delay if any, would not have an adverse impact on the civil right of the plaintiff canvassed before the court. The First Appellate Court having setaside the judgment of the trial court allowed the appeal preferred by the plaintiff.

At the time of admitting the Second Appeal, the followingSubstantial Questions of law were formulated by this Court :1.Whether the partnership firm, before it becomes the absolute owner of the suit property, is entitled to file the suit. 2. Whether, Mandatory Injunction under the SpecificPerformance Act, can be converted into one of a writ of Mandamusunder Article 226 of the Constitution of India. 3. Whether the suit is maintainable against the award of the Land Acquisition Officer, when there is specific remedy under Section54 of the Land Acquisition Act. 7. The learned Counsel appearing for the Defendants would submit that the Senior Town Planner, who participated in the AwardProceedings before the 3rd defendant, has categorically stated that the plaintiffs who applied for approval of layout for the suit properties and adjoining properties were given interim approval of layout on condition that they gifted away the suit property to the Municipality for the purpose of laying a road.

The learned counsel appearing for the plaintiffs would submit that the 3rd defendant has no jurisdiction to decide the title of the suit properties. The moment the 3rd defendant comes to adecision that there is a dispute with respect to the claim made over the suit property, the 3rd defendant should have referred the dispute to the Civil Court under Section 30 of the Land Acquisition Act. Atany rate, the 3rd defendant having issued the Notification under Section 4(1) of the Land Acquisition Act on 27.3.1971 and also made declaration under Section 6 of the said Act on 1.10.1973 should have passed an award under Section 11 of the said Act with respect to the suit properties. The Civil Court has jurisdiction to give adirection to the 3rd defendant, to pass an award under Section 11 of the Act. It is his further submission that the defendants have categorically admitted in the Written Statement that the award was not passed with respect to the suit properties by the 3rd defendant. Though an award Ex.B1 was produced before this Court, the said award was not communicated to the plaintiffs. Therefore, the suit is not barred by Limitation under Article 72 of the Limitation Act. It is his further submission that the title to the suit properties would be established by the plaintiff before the Forum concerned, once the award under Section 11 is passed and suitable reference is made under Section 30 by the 3rd defendant. Therefore, he would submit that the First Appellate Authority has rightly granted the relief of MandatoryInjunction as sought for by the plaintiff.

Ex.B.1 is an Award passed by the 3rd defendant with respect to the other properties covered under the Notification under Section4 of the Act issued by the 3rd defendant on 27.3.1971 and the Declaration under under Section 6(1) made by him on 1.10.1973. Asregards the suit property, the 3rd defendant made some observations in the Award Ex.B.1 dated 31.3.1978. The relevant observation made by the 3rd defendant with respect to the suit property in the AwardEx.B.1 reads as follows: "During the inspection by predecessor found that in the portion now under acquisition in the lands bearingS.No.1637bis-2/18B, 1637bis-16/18B, 10 & 7 have actually been left in the layout for use as streets. The landowners are bound to leave 100 feet width as road in order to obtain the approval of the Senior Town Planner for the layout. Hence he felt that no compensation need be paid in https://hcservices.ecourts.gov.in/hcservices/ these cases. The matter has been referred to the S.T.P.Pondicherry. The Senior Planner in his letterNo.1475/TCP/75 dated 20.12.74 has intimated that the portion under acquisition in S.No.7 & 10 Natesa Nagar)alone may be deemed to be public property as per terms and conditions of the layout and the other two fields are under acquisition for a different public purpose. Hence no compensation is being paid for the lands bearing S.No.7 &10."

On a careful perusal of the aforesaid observations made by the 3rd defendant in the Award Ex.B.1 passed by him, it is found that an enquiry was embarked upon and in the said enquiry, it came tolight that the suit property was in fact earmarked in the layout for the purpose of using it as a street in order to obtain the approval of the layout. The Senior Town Planning Authority of Pondicherry has also corresponded with the 3rd defendant informing him that the suit property was deemed to be public property. In view of the above, the3rd defendant passed an order stating that no compensation need bepaid for the suit properties as the suit properties had already become the public property as per the terms and conditions of the final layout approval granted by the Town Planning Authority, Pondicherry.

It is not as if no order was passed by the third respondent with respect to the suit properties. In the AcquisitionProceedings , the 3rd defendant having come to know that the suit properties had already become the public property on account of the surrender of the same by the plaintiffs in favour of the Municipalitychose to hold that no compensation need be paid for the suit properties. Under such circumstances, an award granting compensation for the suit properties could not be passed by the 3rd defendant. Once the Government has come to a decision that a particular property is a public property, the question of acquisition of the same or payment of compensation therefor would not arise. Though in this case Section 4(1) Notification was issued and Section 6 Declarationalso was made by the 3rd defendant with respect to the suit properties as it had come to light during passing of award under Section 11 of the Act that the suit properties are public property, the 3rddefendant having observed so, rightly refused to grant any compensation for the suit property.

The plaintiff has to necessarily challenge such a finding found in the Award Ex.B.1 with respect to the suit property. It is contended by the plaintiffs that the said Award Ex.B.1 was not served on them. The defendants also have not produced any documents to show that the said award was served on the plaintiffs. The defendants would have been under the impression that there was no necessity to serve the copy of the Award on the plaintiffs as the award was not passed with respect to the suit properties granting compensation. https://hcservices.ecourts.gov.in/hcservices/ Atleast the plaintiffs who in fact participated in the award proceedings should have woken up within a reasonable time to come to know what was the fate of the Award Proceedings taken by the 3rddefendant. Having slept over for 10 years and 7 months, it appears that the plaintiffs have now knocked at the doors of the Civil Court. At any rate, inasmuch as there is no evidence on record to show thatEx.B.1 was served on the plaintiffs nor was any evidence to show that the plaintiffs came to know of the findings found in the AwardEx.B.1, the period of limitation does not start running. Article 72of the Limitation Act, 1963 would apply in a case where a suit has been filed praying for compensation for committing an act or omitting to do an act by the authority concerned pursuant to the provisions of any enactment in force. Here in the suit, the plaintiffs have not sought for any compensation. They have only filed the suit for Mandatory Injunction seeking a direction to the defendants to pass an Award in their favour. Therefore, Article 72 will not apply to the facts of this case.

At any rate, a direction has been sought as against an Executive Authority to perform its function. The plaintiffs should have approached the writ jurisdiction of this Court to give adirection to the Executive Authority to perform its functions. Itappears that the plaintiffs have approached wrongly the Civil Courtseeking such a direction. But on the facts and circumstances of this case, it is found that no Mandatory Injunction can be granted as against the 3rd defendant who had already passed an Award Ex.B.1making clearly an observation therein that the plaintiffs were not entitled to any compensation with respect to the suit properties as the suit properties had already vested with the Municipality.

Coming to the scope of Section 30 of the Land AcquisitionAct, 1894, it is found that only when the amount of compensation has been settled under Section 11 of the Act by the Authority, the dispute if any with respect to apportionment of compensation from the rival claim made by the parties seeking compensation may be referred by the Collector to the Civil Court for determination.

Firstly, it is found that the 3rd defendant while passing an Award under Section 11 has categorically held that no compensation can be awarded in respect of the suit properties as they are found tobe properties vested with the Municipality. Therefore, there was no scope for reference under Section 30 of the Land Acquisition Act,1894 by the 3rd defendant. Secondly, a discretion has been given to the Collector under Section 30 of the Land Acquisition Act to refer the dispute to the decision of the Civil Court, when he considers that there is a dispute relating to the entitlement of compensation or the apportionment of compensation. The Collector has thought it fit not to refer the dispute to the decision of the Civil Court as he had already determined that no compensation need be paid inasmuch as the properties had already vested with the Municipality. Of course, https://hcservices.ecourts.gov.in/hcservices/ the Revenue Authorities do not have the power to decide the title to the properties and it is only the Civil Court which can determine the rival claim made by the parties to a property. The 3rd defendant has returned a finding that no compensation need be paid as the properties had already vested with the Municipality. Such a finding will have to be challenged by the plaintiffs before the Forumconcerned. When the 3rd defendant had already given a finding with respect to the entitlement of compensation made by the plaintiffs in the Award Ex.B.1, this Court cannot give any direction to the defendants to pass an award in favour of the plaintiffs. The reliefas such sought for by the plaintiffs before the Civil Court on the face of it is not at all sustainable.

The First Appellate Court had made an observation thatEx.B.20 is only the Minutes of Approval Proceedings and not final approval for the layout given by the Town Planning Authority, Pondicherry. It has further observed that no document was filed to show that the plaintiffs surrendered the properties in favour of the Municipality. On a perusal of the Ex.B.2, it is found that interim approval of layout was given by the Town Planning Authority, Pondicherry, only on condition that final approval would be given on surrender of the suit properties for laying a road. There is no dispute to the fact that the plaintiffs got final approval of layout. The final approval was produced before this Court as Ex.B.8. TheBlue Print of the layout was also marked as Ex.B.3 on the side of the defendants. The aforesaid documents would go to show that the final approval had been obtained by the plaintiffs only on surrender of the suit properties.

I find that the plaintiffs have approached the wrong Forumseeking a relief of Mandatory Injunction as against the ExecutiveAuthority who had already rendered a finding with respect to the suit properties in the Award Ex.B.1 already passed by them. Instead of challenging the said findings in the said Award passed by the 3rddefendant, the plaintiffs have wrongly chosen the Civil Court. Though the suit is not barred by limitation, it is found that the plaintiffs have not approached the proper forum seeking the remedy challenging the findings rendered in the Award Ex.B.1. When afinding had already been rendered by the 3rd defendant in the Awardconcerned marked as Ex.B.1, this Court ceases to have jurisdiction to direct the 3rd defendant by way of Mandatory Injunction to pass an award in favour of the plaintiffs whose plea for compensation was negatived by the Executive Authority.

As regards the 3rd substantial question of law framed by this Court, firstly, it is found that appeal remedy has been provided under Section 54 of the Land Acquisition Act and not under Section55 of the Land Acquisition Act. Section 54 of the Land AcquisitionAct applies to cases where appeals are preferred before the HighCourt against the Judgment of the Reference Court, namely, the Civil https://hcservices.ecourts.gov.in/hcservices/ Court and not against the award passed by the Executive Authority. Therefore, the plea of the defendants that the suit is not maintainable as there is already a specific remedy provided under Section 54 of the Land Acquisition Act does not survive for consideration.

Coming to the first Substantial question of law framed by this Court, it is found that the plaintiffs have established by producing an additional document Ex.A.21 that the suit properties prior to the surrender to Municipality were brought into the stock of the plaintiff Partnership Firm after the formation of the partnership firm in the year 1972. The substantial question of law is decided accordingly.

In view of the above confirming the judgment of the TrialCourt and setting aside the judgment of the First Appellate Court, the Second Appeal is allowed. There is no orders as to costs. Sd/Asst. Registrar/true copy/Sub Asst. RegistrartsiTo1. The Inspector of Processes-cum-Additional District Munsif at Pondicherry.2. The Principal District Judge, Pondicherry. Copy to The Section Officer, VR Section, High Court, Madras+ 1 cc to Mr.T.R.Rajaraman, Advocate, Sr 64552+ 1 cc to Govt., Pleader Sr 64156S.A.No.1066 of 1995CK (CO)RH (21.1.10)