High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:27.03.2007CORAMTHE HON'BLE MR.JUSTICE P.K.MISRAandTHE HON'BLE MR.JUSTICE K.MOHAN RAMWRIT APPEAL No.2190 of 1999 andC.M.P.No.18354 of 1999 andWrit Appeal Nos.1375 and 1376 of 2000W.A.No.2190 of 1999:R.Sowrirajan.. Appellant-Vs.-1. D.Kala2. D.Ravichandran3. D.Sivasankari (Minor) Rep. by mother & Guardian D.Kala,4. State of Tamil Nadu Rep. by the Commissioner & Secretary to Government Education, Science & Technology Department, Fort St George, Chennai – 600 009.5. Special Tahsildar & Land Acquisition Officer, Madras City Works, Madras Collectorate, Chennai – 600 001 Previously The Special Deputy Collector of Land Acquisition, Madras City Works, Madras – 1... Respondents Prayer:- Writ Appeal under clause 15 of the Letters Patent against theOrder of this Court dated 28.11.1997 made in W.P.No.9880 of 1997 to callfor the proceedings till passing of the award 4/97 dated 13.06.1997 by theSecond Respondent, the Special Tahsildar (MRTS) and Land AcquisitionOfficer (City Works) Collector's Office, Chennai - 1, relating to theacquisition of the property comprised in T.S.No.42 Block No.26, at No.36,V.S.Mudali Street, Saidapet, Chennai - 15 and to quash the same by issueof Certiorari.For Appellant : Mr. Sathish ParasaranFor Respondents : Mr. R.Subramanian, for R-1 to R-3. Mr. P.Subramanian, G.A., for R-4 & R-5.W.A.Nos.1375 & 1376 of 20001. D.Kala2. D.Ravichandran3. D.Sivasankari, Minor Rep. by mother & guardian, D.Kala.. Appellants in both the WAs https://hcservices.ecourts.gov.in/hcservices/ -Vs.-1. The State of Tamil Nadu Rep. by the Commissioner & Secretary, Education, Science & Technology Department, Fort St George, Chennai – 600 009.2. Special Tahsildar & Land Acquisition Officer, Madras City Works, Madras Collectorate, Madras – 600 001 (Previously The Special Deputy Collector of Land Acquisition, Madras City Works, Chennai – 1).3. R.Sowrirajan, Tenant and representing Ganapathy National Middle School, Saidapet, Chennai – 600 015.. Respondents in both the WAsPrayer in W.A.No.1375 of 2000:- Writ Appeal under clause 15 of the LettersPatent against the Order of this Court dated 28.11.1997 made inW.P.No.9880 of 1997.Prayer in W.A.No.1376 of 2000:- Writ Appeal under clause 15 of the LettersPatent to set-aside the this Court dated 28.11.1997 made in W.P.No.17218of 1996 and W.P.No.9880 of 1997.Prayer in WP.17218/1996 :Filed under Article 226 of the Constitution of India, to issue a Writof Certiorari to call for the records of Land Acquisition proceedingscovered by Sec.9(3) notice dated 08.10.1996 based on Sec.4(1) notificationdated 07.07.1982 and Sec.6 Declaration dated 18.06.1983 on the file of theSpecial Tahsildar and Land Acquisition Officer, previously the SpecialDeputy Collector for Land Acquisition, Madras City Works relating to theacquisition of the property at No.36 V.S.Mudali Street, Saidapet, Madras-15 and quash the same. For Appellants in both the WAs : Mr. R.Subramanian For Respondents in both the WAs : Mr. P.Subramanian, G.A., for R-1 & R-2. Mr. Sathish Parasaran, for R-3.C O M M O N J U D G M E N T(Judgment of the court was delivered by Justice K.Mohan Ram)The facts are not in dispute. For the sake of convenience, theparties are referred to as per their ranking in the writ petitions.2. The land, building and premises comprised in T.S.No.42, BlockNo.26 bearing Old No.33 was owned by late Duraikannan and on his death,his legal heirs, the petitioners, succeeded to the said property. Thethird respondent is a tenant in respect of the said property. RentControl Proceedings were initiated against the third respondent foreviction and for fixation of fair rent. The order of eviction passed by https://hcservices.ecourts.gov.in/hcservices/ the Rent Controller has become final and the fixation of fair rent ispending at the stage of revision. While dismissing the Special LeavePetition arising out of the eviction proceedings, the Apex Court directedthat in case the acquisition is effected, the order of eviction will notoperate against the tenant in possession. 3. When the eviction order was put into execution, the firstrespondent-State Government issued Section 4(1) notification under theLand Acquisition Act (hereinafter referred to as "the Act") inG.O.Ms.No.1357 (Education, Science and Technology) dated 18.06.1982 andthe same was gazetted on 07.07.1982. After completion of the enquiryunder Section 5-A of the Act, Section 6 declaration was issued inG.O.Ms.No.1134 (Education, Science and Technology), dated 18.06.1983 andthe same was gazetted on 29.06.1983. The deceased Duraikannan challengedthe land acquisition proceedings by filing W.P.No.6337 of 1983 and thesame was allowed on 04.07.1986. 4. The third respondent preferred W.A.No.761 of 1986 against theorder passed in W.P.No.6337 of 1983, but a Division Bench by its judgmentdated 11.08.1986 dismissed Writ Appeal.5. As against the Division Bench judgment of this Court, the thirdrespondent-tenant preferred Civil Appeal No.2995 of 1986 and the SupremeCourt by its order dated 02.09.1986 granted stay and dispossession of thethird respondent and ultimately the Civil Appeal was allowed and the landacquisition proceeding was upheld by judgment dated 07.08.1986. 6. On 08.10.1996, a notice under Sections 9(3) and 10 of the Act wasserved on the petitioners calling upon them to put forth their claims andappear for an enquiry for passing the award. At that stage, thepetitioners filed W.P.No.17218 of 1996 and an interim order of status-quowas passed on 21.11.1996. The said interim order was extended once forsix weeks and thereafter it was not extended. Hence, the Land AcquisitionOfficer-the second respondent proceeded with the award enquiry and passedAward No.4 of 1997 on 12.06.1997 fixing a compensation of Rs.29,088/-including solatium. 7. At that stage, the petitioners filed W.P.No.9880 of 1997 to quashAward No.4 of 1997 dated 12.06.1997 and the said writ petition wasadmitted on 04.07.1997 and an order of interim stay was granted and thewrit petition was directed to be posted along with W.P.No.17218 of 1996.8. Before the Learned Single Judge, the writ petitioners contendedthat as no award had been passed within two years from the date of Section6 declaration as contemplated under Section 11(A) of the Act, the entireproceedings stand abated or lapsed. The Learned Single Judge afterelaborately considering the rival contentions held that the award had beenpassed well within the period prescribed and dismissed both the writpetitions. But the Learned Single Judge on the question of payment ofcompensation, instead of taking the value as on the original date ofnotification under Section 4(1) of the Act i.e., on 07.07.1982 proceededto direct the payment of compensation with usual solatium and interest asif Section 4(1) Notification was issued on 12.06.1994 that is three yearsbefore the date of award i.e., 12.06.1997. https://hcservices.ecourts.gov.in/hcservices/

9. Being aggrieved by the above said direction regardingcompensation, the third respondent has filed W.A.No.2190 of 1999 againstW.P.No.9880 of 1997. Against the dismissal of W.P.No.9880 of 1997 andW.P.No.17218 of 1996, the writ petitioners have filed W.A.Nos.1375 and1376 of 2000 respectively. In W.A.Nos.1375 and 1376 of 2000, the maincontention of the petitioners is that in W.P.No.6337 of 1983, an order ofinterim stay was granted on 26.07.1983 and the writ petition was allowedon 04.07.1986 and after 04.07.1986, the land owners-the petitioners hadnot taken any action and hence in terms of Section 11(A) of the Act, anaward should have been passed within two years, after excluding the periodfrom 26.07.1983 to 04.07.1986 and also the period between 04.07.1986 to07.08.1996, but the learned Single Judge erroneously failed to exclude theperiod commencing from 26.07.1983 to 07.08.1996 and erred in holding thatthe award has been passed within two years from 24.09.1984 after excludingthe period covered by the said orders. 10. Learned counsel for the writ petitioners further submitted thatagainst the order dated 04.07.1986 allowing W.P.No.6337 of 1983 filed bythe writ petitioners, the Government did not prefer any appeal but thethird respondent who was the beneficiary alone filed the Writ Appeal andagainst the dismissal of the Writ Appeal also, the third respondent alonepreferred the Civil Appeal before the Apex Court, though neither the writappeal nor the civil appeal can be maintained at the instance of thebeneficiary. He further submitted that when the Government had not chosento challenge the order of this Court allowing the writ petition to keepthe Land Acquisition Proceedings alive, it should be deemed that theGovernment had abandoned the land acquisition proceedings and thereforesubmitted that due to the filing of the appeals before the Division Benchand also before the Apex Court by the third respondent, the passing of theaward had been delayed which had adversely affected the right and interestof the writ petitioners.11. On the other hand, the contention of the third respondent is thatthe learned Single Judge after elaborately setting out the relevant dateshas categorically found that though the writ petitioners did not take anysteps after 04.07.1986, since the declaration under Section 6 had beenquashed no award could be passed till the Supreme Court allowed the CivilAppeal on 07.08.1996. The third respondent further contended that theperiod commencing from 26.07.1983 to 07.08.1996 has been rightly excludedby the learned Single Judge in terms of proviso to Section 11(A) of theAct.12. We have heard Mr.Sathish Parasaran learned counsel for thepetitioner in W.P.No.9880 of 1997 (appellant in W.A.No.2190 of 1999) andMr.R.Subramanian learned counsel for the third respondent (also thirdRespondent in W.A.No.2190 of 1999).13. Learned counsel for the petitioners and the learned counsel forthe third respondent reiterated the above said contentions put forthbefore the learned Single Judge. As rightly pointed out by the learnedSingle Judge from 26.07.1983 to 04.07.1986, during the pendency of saidorders, no award could be passed. So also, on and after 04.07.1986 namelythe date on which W.P.No.6337 of 1983 was allowed and till 07.08.1996, on https://hcservices.ecourts.gov.in/hcservices/ which date the Apex Court ultimately allowed the Civil Appeal anddismissed W.P.No.6337 of 1983, the award could not have been passed.Therefore, it is crystal clear that the period from 26.07.1983 to07.08.1996 has to be excluded as per the proviso to Section 11(A) of theAct, while computing the period within which the award had to be passed.The contention of the writ petitioners that nothing prevented the LandAcquisition Officer from passing the award as there was no impediment forthe Land Acquisition Officer to pass the award does not merit acceptance.When Section 6 declaration has been quashed and when there is no validdeclaration no award could be passed. Only when the Apex Court upheld theland acquisition proceedings, the land acquisition proceedings wererevived and within two years from the date of coming into force of theamended Act, the award had been passed on 12.06.1997 and if the period ofstay and the period of pendency of the Writ Appeal before this Court andCivil Appeal before the Apex Court are excluded, it should be held thatthe award had been passed within the stipulated period. Therefore, we arein full agreement with the reasoning of the learned Single Judge and we donot find any merit in the contentions of the writ petitioners and hencethe writ appeals filed by them are liable to be dismissed.14. The third respondent, as stated above, has filed W.A.No.2190 of1999 as against the order dated 28.11.1997 passed in W.P.No.9880 of 1997directing the fixation of payment of compensation with usual solatium andinterest. Learned counsel for the third respondent submitted that thelearned Single Judge having rejected the main contentions of the writpetitioners ought not to have introduced the deeming fiction and theprinciples of equity to defeat the purpose and intent behind the orderspassed by this Court and the Honourable Apex Court confirming andupholding the Land Acquisition Proceedings. Learned counsel furthersubmitted that the entire delay in the conclusion of the Land AcquisitionProceedings was attributable solely on the writ petitioners, but thelearned Single Judge has erroneously proceeded to attribute the cause forthe delay on the third respondent, in view of the filing of the writappeal and Civil Appeal. Learned counsel further submitted that there isabsolutely no justification which called for invocation of the principle'actus curiae neminem gravabit' and further submitted that the decisionsreported in 1994 (1) S.C.C. 44 (Ram Chand and Others Vs. Union of Indiaand others) and 1991 (4) S.C.C. 584 (Union Carbide Corporation and othersVs. Union of India and others) ought not to have been relied upon by theLearned Single Judge as directions for payment of higher compensation byadvancing the date of 4(1) notification had been passed by the Apex Courtin the exercise of its power conferred under Article 142 of theConstitution of India and such power is not available to the High Courtwhile exercising power under Article 226 of the Constitution of India.Learned counsel further submitted that the facts and circumstancesexplained in the above said decisions were altogether different and werenot in any manner relatable to the facts of the instant case.15. Per contra, Mr.Subramanian, learned counsel for the writpetitioners submitted that the principles laid down in 1994 (1) S.C.C. 44(referred to supra) and 1991 (4) S.C.C. 584 (referred to supra) aresquarely applicable to the facts of the instant case and when the factsand circumstances of a case warrant that great injustice has been done tothe land owners, because of the undue delay in completion of the land https://hcservices.ecourts.gov.in/hcservices/ acquisition proceedings, with a view to do complete justice between theparties, the High Court also has got power under Article 226 of theConstitution of India to pass appropriate orders to do complete justicebetween the parties. According to the learned counsel, the Learned SingleJudge has properly considered the said decisions and has applied theprinciples laid down by the Apex Court, as the facts of the instant casewarranted the advancement of the date of 4(1) notification to enable thewrit petitioners to get a 'just compensation' for the valuable propertywhich has been acquired. 16. In support of his contentions, the learned counsel for the thirdrespondent relied upon a decision of the Apex Court reported in 1999 (9)S.C.C. 40 (C.M.Singh Vs. H.P.Krishi Vishva Vidyalaya and others). In thesaid decision, the Apex Court has observed as follows:-"5. ..... Apart therefrom, the language employed by thisCourt in Rekha Chaturvedi case 1993 Supp (3) SCC 168 : 1993SCC (L&S) 951 : 1993 25 ATC 234 would suggest that thisCourt was employing the powers conferred on it under Article142 to do complete justice. The High Court does not havesuch powers. Having found on merits in favour of the writpetitioners we do not think that the High Court wasjustified in declining any relief to them".17. We have to consider the question as to whether the learned SingleJudge is right in applying the ratio of the decision reported in 1994 (1)S.C.C. 44 (referred to supra) to the facts of this case. The LearnedSingle Judge has extracted relevant portion of the said decision inparagraph 46 of the judgment and has relied upon the following observationof the Apex Court, viz.,:-"The High Court or this Court, can grant a modified relieftaking into consideration the injury caused to the claimantsby the inaction on the part of the respondents and directpayment of any additional amount, in exercise of power underArticle 226 or Article 32 of the Constitution".But the learned Single Judge, with respect, has failed to notice thefollowing vital observation of the Honourable Apex Court in the very samepassage extracted by the Learned Single Judge, viz., "There appears to be some force in the contention of thepetitioners that the object of respondents was to peg theprice of the lands acquired from the different cultivatorsto a distant past and not to proceed further because if theawards had been made soon after the declarations underSection 6, respondents had to pay or tender the compensationto the claimants, which for some compulsion, respondentswere not in a position to pay or tender them. But,nonetheless, the exercise of power in the facts andcircumstances of the cases by the respondents has to be heldto be against the spirit of the provisions of the Act,tending towards arbitrariness. In such a situation thisCourt in exercise of power under Article 32 and the HighCourt under Article 226, could have quashed theproceedings, the Delhi Administration and Delhi DevelopmentAuthority have taken possession of the lands and evendevelopments have been made, it shall not be proper exercise https://hcservices.ecourts.gov.in/hcservices/ of discretion on the part of this Court to quash theproceedings because, in that event, it shall affect thepublic interest. Moreover, third party interests created inthe meantime are also likely to be affected and such thirdparties are not impleaded. The relief of quashing theacquisition proceedings have become inappropriate due to thesubsequent events, the grant of a modified relief,considered appropriate in the circumstances, would be theproper course to adopt".(Emphasis supplied)A reading of the above said passage clearly shows that the Apex Court cameto the conclusion that there were grounds to quash the acquisitionproceedings, but taking into consideration the public interest and thecreation of third party interest and the non-impleadment of such thirdparties, the Apex Court chose not to quash the proceedings, but insteadgranted a modified relief taking into consideration the injury caused tothe claimants by the inaction on the part of the authorities and directedthe payment of additional amount, but the fact situation in the instantcase is totally different. It is settled law that the principle of lawlaid down by the Apex Court can be applied to a particular case only ifthe facts of the case are same but not otherwise. Learned counsel for thewrit petitioners is unable to show any decision of the Apex Court, whereinthe Apex Court, in exercise of its power under Article 142 of theConstitution of India, has enhanced the compensation by advancing the dateof 4(1) notification even when the Apex Court had not found any defects inthe land acquisition proceedings under challenge before it and upheld thesame. The Apex Court has not enhanced the compensation by advancing thedate of 4(1) notification even in a case where the land acquisitionproceedings were upheld. It has to be pointed out that only when the ApexCourt found some defects in the land acquisition proceedings and was ofthe opinion that the relief of quashing the land acquisition proceedingsbecame inappropriate due to subsequent events, the grant of a modifiedrelief was thought fit and accordingly the modified relief was granted.Therefore, in our considered view, the reasoning of the Learned SingleJudge for granting enhanced compensation by advancing the date of 4(1)notification, even while upholding the land acquisition proceedings, isnot correct.18. Therefore when the learned Single Judge has chosen to reject thecontention of the writ petitioners and dismiss the writ petitions, thelearned Single Judge ought not to have introduced a fiction as if Section4(1) notification was issued on 12.06.1994, when in fact Section 4(1)notification had been issued as early as on 07.07.1982. In the decisionreported in 1995 (6) S.C.C. 749 (B.C.Chaturvedi Vs. Union of India andothers), His Lordship Honourable Mr. Justice B.L.Hansaria in hisconcurring but separate judgment in paragraphs 23 and 26 has observed asfollows:-"23. It deserves to be pointed out that the mere fact thatthere is no provision parallel to Article 142 relating tothe High Courts, can be no ground to think that they havenot to do complete justice, and if moulding of relief woulddo complete justice between the parties, the same cannot beordered. Absence of provision like Article 142 is notmaterial, according to me. This may be illustrated by https://hcservices.ecourts.gov.in/hcservices/ pointing out that despite there being no provision in theConstitution parallel to Article 137 conferring power ofreview on the High Court, this Court held as early as 1961in Shivdeo Singh Vs. State of Punjab (A.I.R. 1963 S.C. 1909)that the High Courts too can exercise power of review, whichinheres in every Court of plenary jurisdiction. I would saythat power to do complete justice also inheres in everycourt, not to speak of a Court of plenary jurisdiction likea High Court. Of course, this power is not as wide as whichthis Court has under Article 142. That, however, is adifferent matter".26. I had expressed my unhappiness qua the first facet ofthe case, as Chief Justice of the Orissa High Court in paras20 and 21 of Krishna Chandra Pallai Vs. Union of India(A.I.R. 1992 Ori. 261 (FB)), by asking why the power ofdoing complete justice has been denied to the High Courts.I feel happy that I have been able to state, as a Judge ofthe Apex Court, that the High Courts too are to do completejustice. This is also the result of what has been held inthe leading judgment."19. In the decision reported in A.I.R. 1992 Orissa 261 (FB) (KrishnaChandra Pallai Vs. Union of India and another), in paragraph 21, the FullBench has observed as follows:-"21. So, merely because there is no express provision in theConstitution giving the High Courts power to pass suchorders as may be deemed necessary for doing "completejustice" in any case or matter pending before it, the sameshould not be clinching. It is for consideration whethersuch a power should not be conceded to the High Court,because a very small segment of the Indian litigants canafford to fight legal battle in the Supreme Court, interalia, because of the expenditure involved. So, a common manwould be deprived of getting "complete justice", if the HighCourts are not empowers to do so."20. The above said decision of the Apex Court and the Orissa HighCourt also clearly shows that the power available to the Apex Court underArticle 142 of the Constitution of India to pass appropriate orders to docomplete justice between the parties is not available to the High Courtwhile exercising power under Article 226 of the Constitution of India.21. It is true, as pointed out by the learned Single Judge, themarket value of the land acquired as on the date of the judgment of theApex Court namely on 07.08.1996 would not be less than Rs.20 lakhs perground and with the sum of Rs.29,088/- awarded as compensation the writpetitioners would not be in a position to purchase even a few square feetof land in the same area. But having upheld the validity of the awardpassed and dismissed the writ petitions, and also when similar powers asavailable to the Supreme Court of India under Article 142 of theConstitution of India are not available to this Court, this Court can onlyexpress its sympathy to the writ petitioners. We too can only sympathizewith the writ petitioners but as we are bound by the law laid down by theApex Court, we are unable to accept the reasoning of the learned Single https://hcservices.ecourts.gov.in/hcservices/ Judge and therefore we are constrained to set-aside that part of thejudgment of the learned Single Judge directing fixation of highercompensation by fixing the date of 4(1) notification as 12.06.1994.22. We would also like to point out that the principle of 'actuscuriae neminem gravabit' could not be applied to the facts of this case.No doubt the proceedings were pending before this Court and before theApex Court for a long time and while the Government had not chosen tochallenge the order of the Learned Single Judge quashing the landacquisition proceedings, it was only the beneficiary who challenged theproceedings before the Division Bench of this Court and as well as beforethe Apex Court and though in law the contention of the learned counsel forthe petitioners that the beneficiaries could not have filed the writappeal before this Court and the Civil Appeal before the Apex Court, seemsto be acceptable, since the Honourable Apex Court has entertained theCivil Appeal and upheld the acquisition proceedings, it is not open to thewrit petitioners to advance such an argument in the above writ appeals.23. For the reasons stated above, the Writ Appeal Nos.1375 and 1376of 1999 are dismissed and Writ Appeal No.2190 of 1999 is allowed.However, there will be no order as to costs. Consequently the connectedCMP is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsrkTo1. The Commissioner & Secretary to Government Education, State of Tamil Nadu Science & Technology Department, Fort St George, Chennai – 600 009.2. The Special Tahsildar & Land Acquisition Officer, Madras City Works, Madras Collectorate, Chennai – 600 001 Previously The Special Deputy Collector of Land Acquisition, Madras City Works, Chennai – 1.1 cc To Mr.Satish Parasaran, Advocate, SR.19482,19484.1 cc To Mr.P.Veeraraghavan, Advocate, SR.20038.1 cc To The Government Pleader, SR.19864.W.A.No.2190 of 1999 and C.M.P.No.18354 of 1999 and W.A.Nos.1375 and 1376 of 2000 SSV(CO)RVL 03.04.2007