Bharathiar University,CoimbatoreRep. by its Registrar... v. Bharathiar University Unit IV Coimbatore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.01.2008C O R A MTHE HONOURABLE Mr.JUSTICE P.JYOTHIMANIW.P.No.6689 of 1998 Bharathiar University,CoimbatoreRep. by its Registrar... Petitioner -Vs-1. Bharathiar University Unit IV Coimbatore.2. I Additional Sub Judge, Coimbatore.3. Maruthappa Gowder4. K.Sivasamy5. Periya Muniammal6. Chinna Muniammal7. S.Jeya8. A.Subbammal9. A.Ramanathan10. Muthusamy11. S.Padmavathi12. Nanjammal alias Selvi13. Deivanayagi alias Deivanai14. S.Anandasivam15. Minor K.Sivaraj16. Rangasamy Gounder17. Subbaian18. Pappathy19. Ramasamy20. Palanisamy21. Sarojini22. Annapoorani23. M.Maruthakkal24. Rangasamy Gounder25. Krishnasamy Gowder26. K.R.Kuppusamy27. R.Subramaniam28. R.Murugesan29. Sathiamoorthi30. R.Rani31. K.Basuvaraj32. Rani https://hcservices.ecourts.gov.in/hcservices/

33. K.Nanjappa Gounder34. Tmt.Thevagiriammal35. Nanjappa Gounder36. Maruthappa Gounder37. Subbammal38. K.Sivasamy39. Periamuniammal40. Chinna Muniammal41. Jeya42. Thevakkal43. Maruthappan44. Gnanasambandam45. Rajammal46. Muthammal47. O.Susheela48. Nanjappa Gounder49. R.Maruthe Gounder (deceased)50. Mariappan51. D.Balasubramania Chettiar52. Subbanna Mudaliar53. Maruthappan54. M.Palaniammal55. M.Palanisamy56. S.Subbulakshmi57. S.Parvathi .. RespondentsWrit Petition filed under Article 226 of the Constitution of Indiafor the issuance of a Writ of Certiorarified Mandamus calling for therecords of the judgment and decree made in L.A.O.P.No.26/96 dt.06.03.1987on the file of the I Additional Sub Court, Coimbatore, quash the same andconsequently direct the learned I Additional Subordinate Judge, Coimbatoreto proceed with the reference in accordance with law.For Petitioner : Mr.M.SekarFor Respondents : Mr.K.Govi Ganesan 3 to 6, 8 to 13, 15, 17 to 24, 26 to 32, 42 to 47, 50, 52, 54 to 56.For Respondent 51 : Mr.P.VeeraraghavanFor Respondents: No appearance.7, 32, 36, 37, 38, 40, 53 & 57.For Respondents 14,: Not ready in Notice16, 25, 19, 33, 34, 35, 48 & 49 https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe Bharathiar University represented by its Registrar is the writpetitioner. What is challenged in this writ petition is the Judgment andDecree passed by the learned I Additional Sub Judge, Coimbatore dated06.03.87 in L.A.O.P.No.26/86. An extent of 43.63 acres situated in thevillage of Vadavalli in the registration district of Coimbatore bearingSurvey Nos.327, 328/1, 338/1, 328/2, 338/1A, 338/1B, 338/2, 339/2, 340/2,341/2, 341/3, 342, 343, 344 etc. belonging to the respondents 3 to 57 wereacquired by the Government of Tamil Nadu for providing housing sites forthe Professors and other employees of Bharathiar University on itsrequisition. 2. The Land Acquisition Officer after following the due procedure haspassed an Award in Award No.4 of 1984 dated 26.07.1984 by considering thevalue of the land as on the date of Notification issued under Section 4(1)which was on 09.01.1980. The Land Acquisition Officer had fixed thecompensation to be payable to the owners at Rs.5,000/- per acre. Therespondents 3 to 57 had sought reference to the Civil Court under Section18 of the Land Acquisition Act seeking enhancement. The said referencewas numbered as L.A.O.P.No.26/86 and ultimately the learned I AdditionalSub Judge, Coimbatore by Judgment and Decree dated 06.03.97 has enhancedthe compensation to Rs.500 per cent apart from solatium at Rs.30% withinterest at Rs.12% per annum from the date of Award viz. 26.07.84.3. It is the case of the University, who is the writ petitioner, thatthe Award made has been enhanced by 10 times, while the Land AcquisitionOfficer has fixed Rs.2,50,873/- and the same has been deposited by theUniversity with the government. The grievance of the petitionerUniversity is that while the amount of Award was enhanced, the petitionerbeing the requisitioning body was not given notice. The writ petitionerUniversity is challenging the portion of the Award by which the amount ofcompensation was enhanced as stated above on the ground that by virtue ofThe Land Acquisition (Tamil Nadu Amendment) Act, 1989 (Tamil Nadu Act 14of 1990). Section 20 of the Land Acquisition Act, 1894 has been includedwith a new Sub Section 'd' as per the Tamil Nadu amendment stated above bywhich the Court while passing Award should consider the objection of notonly the applicant and persons interested and in the event of acquisitionis not made for the Government, the person or authority for whose benefitit is made are also to be heard. In view of the factual position when theCourt while enhancing the Award by passing Judgment and Decree in L.A.O.P.has not given notice to the writ petitioner who is the requisitioningauthority and therefore it violates the mandatory provisions under Section20(d) of the Land Acquisition Act, as incorporated by the said Tamil NaduAct 14 of 1990 and hence the Award has to be set aside. https://hcservices.ecourts.gov.in/hcservices/

4. As submitted by Mr.M.Sekar, learned counsel appearing for thepetitioner when by a subsequent amendment viz The Land Acquisition (TamilNadu Amendment) Act, 1996 (Tamil Nadu Act 16 of 1997), to Section 18 ofthe Land Acquisition Act, a new Sub Section viz 18(3) has been insertedmaking it clear that if the acquisition is not for the Government, theperson or authority for whose benefit the acquisition is made must be madea party in the reference under Section 18 of the Act. Therefore,according to the learned counsel appearing for the petitioner, by virtueof the Tamil Nadu Act 16 of 1997, the writ petitioner University who isthe requisitioning body and for whose benefit the acquisition was made wasnot made a party under Section 18, hence the reference as well as thesubsequent order becomes void. 5. However, it is not in dispute as submitted by Mr.Govi Ganesan,learned Counsel appearing for some of the respondents that as against theAward passed by the learned I Additional Sub Court, Coimbatore inL.A.O.P.No.26/86 dated 06.03.97 enhancing the compensation, the Governingbeing the land acquisition authority has filed an appeal under Section 54of the Land Acquisition Act in this Court in A.S.No.388 of 1998, which isstill pending. 6. It is contended by Mr.M.Sekar, learned counsel appearing for thepetitioner that in the first appeal the petitioner University is not aparty and therefore the petitioner who is the requisitioning body forwhose benefit the lands are being acquired may be losing his valuableright in putting forth its contentions against enhancement of the Awardamount because ultimately the petitioner University which has to bear theamount which has been enhanced. Therefore, he expressed fear that in theevent of the petitioner University not being impleaded in the first appealit will loose its valuable right. 7. It is true that as per Section 20 of the Land Acquisition Act theService of Notice is mandatory while the matter is pending for referencebefore the Court and after the Tamil Nadu Act 14 of 1990 the new clauseviz., 'd' has been incorporated. After the said amendment Section 20reads as follows:"20. Service of notice:- The Court shall, thereupon, causea notice, specifying the day on which the Court will proceed todetermine the objection, and directing their appearance beforethe 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 receivepayment of the compensation awarded; https://hcservices.ecourts.gov.in/hcservices/ (c) if the objection is in regard to the area of the landor to the amount of the compensation, the collector; and(d) if the acquisition is not made for the Government, theperson or authority for whom it is made."8. It is also true that under Section 18 which is regarding thereference to Court for compensation, a new sub-section has beenincorporated by the Tamil Nadu Act 16 of 1997 and after incorporation ofthe said sub-section '3', Section 18 reads as follows:"18. Reference to Court:- (1) Any person interested who hasnot accepted the award may, by written application to theCollector, require that the matter be referred by the Collectorfor the determination of the Court, whether his objection be tothe measurement of the land, the amount of the compensation, thepersons to whom it is payable, or the apportionment of thecompensation among the persons interested.(2) The application shall state--(a) the grounds on which the objection to the award istaken; and(b) if it relates to the enhancement of compensation,the exact amount required to be enhanced.Provided that every such application shall be made,--(a) if the person making it was present or representedbefore the Collector at the time when he made his award, withinsix weeks from the date of the Collector's award;(b) in other cases, within six weeks of the receipt ofthe notice from the Collector under section 12, sub-section (2),or within six months from the date of the Collector's award,whichever period shall first expire.(3) Notwithstanding anything contained in this Act or inthe Code of Civil Procedure, 1908 (Central Act V of 1908), or inany other law for the time being in force or in any contract,the application shall, if such application relates to the amountof compensation and if the acquisition is not made for theGovernment, implead the person or authority, as the case may be,for whom the acquisition is made, as a party in suchapplication." https://hcservices.ecourts.gov.in/hcservices/

9. Therefore, there is no difficulty to arrive at the conclusion thatthe petitioner being the requisitioning body is entitled for notice in thereference before the Court and such notice has not been given to thepetitioner. It is also true that the petitioner being the requisitioningbody has the burden of bearing the enhanced amount of compensation whichwill be ultimately decided by the Court. It is also made clear by thelearned counsel appearing for the petitioner that the petitioner is notquestioning the acquisition proceedings since it is for the benefit of thewrit petitioner University, the acquisition itself has been made by theGovernment. Therefore, the only question that is to be decided is as towhether the writ petition can be entertained by this Court at this stage,especially when the Government being the acquisition authority has alreadyapproached this Court by filing an appeal under Section 54 of the LandAcquisition Act challenging the enhancement of compensation made by thelearned I Additional Sub Judge, Coimbatore by its Judgment and Decreedated 06.03.87.10. Mr.M.Sekar, learned counsel appearing for the petitioner wouldsubmit that on similar circumstances exactly to that of the facts of thepresent case, this Court in Neyveli Lignite Corporation Ltd. representedby the Secretary, Neyveli-1 Vs. P.R.Govindarajulu and others (1993 2 L.W.37) wherein Mr.Justice A.R.Lakshmanan, as he then was, by relying uponSection 20(d) of the Land Acquisition Act, as stated above, has held thatthe Award passed by the Court without giving notice to the person who isthe requisitioning body is illegal and remitted the matter back to theCourt. However, as submitted by Mr.Govi Ganesan, learned counselappearing for some of the respondents the Hon'ble Apex Court after theabove said judgment referred to by the learned counsel appearing for thepetitioner, in Neyvely Lignite Corporation Ltd. Vs. Special Tahsildar(Land Acquisition) Neyvely and others (1995 1 SCC 221) has held that theproper party in such circumstances has to be protected, the affected partyhas to be impleaded before the Court either in reference provided underSection 18 or before the High Court in appeal under Section 54 of the LandAcquisition Act. The operative portion of that order is as follows:"14. If there is no right of hearing or appeal given to thebeneficiary and if the State does not file the appeal or iffiled with delay and it was dismissed, is it not the beneficiarywho undoubtedly bears the burden of the compensation, who wouldbe the affected person ? Is it not interested to see that theappellate court would reassess the evidence and fix the properand just compensation as per law ? For instance the referencecourt determined market value at Rs.1,00,000/- while theprevailing market value of the land is only Rs.10,000/-. Who isto bear the burden ? Suppose State appeal was dismissed due torefusal to condone the delay, is it not an unjust and illegalaward ? Many an instance can be multiplied. But suffice it tostate that when the beneficiary for whose benefit the land is https://hcservices.ecourts.gov.in/hcservices/ acquired is served with the notice and brought on record at thestage of enquiry by the Collector and reference court underSection 18 or in an appeal under Section 54, it/they would beinterested to defend the award under Section 11 or Section 26 orwould file an appeal independently under Section 54 etc. againstthe enhanced compensation. As a necessary or proper partyaffected by the determination of higher compensation, thebeneficiary must have a right to challenge the correctness ofthe award made by the reference court under Section 18 or inappeal under Section 54 etc. Considered from this perspectivewe are of the considered view that the appellant-Company is aninterested person within the meaning of Section 3(b) of the Actand is also a proper party, if not a necessary party under Order1 Rule 10 of the CPC. The High Court had committed manifesterror of law in holding that the appellant is not a personinterested. The orders of the High Court are accordingly setaside.15. Since the writ petitions filed by the appellants weredismissed, we set aside the orders and direct the High Court totreat them as appeals properly filed under Section 54 of the Actand be dealt with along with the appeals filed by the Statepending disposal in the High Court. In the pending referencesunder Section 18, in the Court of the Subordinate Judge,Cuddalore, it is directed to order impleading the appellant as aparty-respondent and would give reasonable opportunity to cross-examine the witness examined by the claimants and to examinewitnesses on its behalf to rebut the evidence for highercompensation, the appellant is entitled to be heard in supportof the determination of just and proper compensation. In thisview, the need to implead the appellant as a party-respondent inthe pending appeals in the High Court does not arise."11. Basing reliance on the said judgment of the Hon'ble Apex Court,the First Bench of this Court in The Chairman cum The Managing Director,Tamil Nadu Water Supply and Drainage Board, Chepauk, Madras-5 Vs. The LandAcquisition Officer and The Revenue Divisional Officer, Tirunelveli andothers (1995 Writ L.R. 593) has clearly held that under such circumstancesthe Award cannot be held as a nullity on the ground of not giving anopportunity to the relevant party as per the provisions of the LandAcquisition Act and such a party can be directed to be impleaded in theappeal pending before the High Court. The First Bench of this Court afterreference to the above said Hon'ble Apex Court decision cited supra hasheld in paragraph 4 as follows:"4. The learned single judge has rejected the prayer of theappellant to quash the award and to remit the matter to thecivil court for deciding the reference after affording anopportunity to the appellant to adduce evidence and also forpersonal hearing. However, the learned single judge has made it https://hcservices.ecourts.gov.in/hcservices/ clear, it is open to the appellant to get itself impleaded asparty-respondent in the appeal, so that the requisiteopportunity may be available to it of being heard and also forproducing evidence, if any. We do not, therefore, consider itnecessary to decide the contention of Mr.N.R.Chandran, learnedsenior counsel for the appellant that as the award of the civilcourt has been passed without affording an opportunity to theappellant it is a nullity, and therefore, the award as passedhas to be set aside and the Reference has to be remitted to thecivil court, in view of the very same decision of the SupremeCourt in Neyveli Lignite Case, referred to above. In a similarsituation, the Supreme Court in the aforesaid case had directedthe writ petitions to be treated as appeals properly filed underSection 54 of the Act, and directed to deal with the same asappeals along with the appeals filed by the State, pending onthe file of this High Court. With reference to the referencepending before the Subordinate Judge, the Supreme Court hasdirected to implead the Neyveli Lignite Corporation as partyrespondents and to give reasonable opportunity to cross examinethe witnesses examined by the claimant and examine witness orwitnesses on its side to rebut the evidence for highercompensation. The Supreme Court has further observed that theNevyeli Lignite Corporation would be entitled to be heard insupport of determination of just and proper compensation. Thatbeing the position, we are of the view, that instead of makingthe appellant to file an application for impleading it as aparty respondent, in the light of the aforesaid judgment of theSupreme Court, the appellant herein can be directed to beimpleaded as one of the appellants in A.S.Nos.657 to 659 of1989, which are filed by the Land Acquisition Officer, as theinterest of the Land Acquisition Officer and that of theappellant do not conflict. Therefore, we direct that theappellant herein be impleaded as an appellant in the saidpending appeals, so that it can have requisite opportunity. Weaccordingly dispose of these Writ Appeals in the followingterms:-"12. In view of the above said legal position as laid down by theHon'ble Supreme Court and as followed by the First Bench of this Court,especially in the circumstances that appeal in A.S.No.388 of 1998 filed bythe Government being the acquisition authority is pending before thisCourt, the proper remedy for the petitioner would be to get himselfimpleaded in the appeal. In fact, Mr.Govi Ganesan, learned counselappearing for some of the respondents would fairly submit that if thepetitioner University being the requisitioning body and which has vitalinterest in the subject matter files such application for impleading, thesaid respondents being the claimants would have no objection. https://hcservices.ecourts.gov.in/hcservices/

13. In view of the above said legal position and the submission madeby the learned counsel appearing on either side, this Court is of the viewthat the writ petition is not maintainable and has to be dismissed,however, with liberty to the petitioner to file petition for impleading inA.S.No.388 of 1998 pending before this Court, in which event, thepetitioner being the requisitioning authority who is certainly a properand necessary party by virtue of the amendments to Sections 18 and 20 ofthe Land Acquisition Act, shall be considered for impleading as a party.This writ petition is dismissed with the above direction. No costs.kkSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The I Additional Sub Judge, Coimbatore.2. The Registrar, Bharathiar University, Coimbatore.3. The Bharathiar University Unit-IV, Coimbatore.+1 cc to Mr.M.Sekar, Advocate Sr.No.2504.+1 cc to M/s.K.Goviganesan, Advocate Sr.No.2587.AKR(CO)DCP/1.2W.P.No.6689 of 1998