Mrs. Jayalakshmi v. The Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 26.08.2009CORAMTHE HONOURABLE Mr. JUSTICE K.VENKATARAMAN W.P.No.30199 of 2008and M.P.No.1 of 20081.Mrs.Jayalakshmi2.M.Palanivel3.S.A.Ramar4.G.Mythili5.Manoharan6.Jayaraman7.Vairajothi8.K.Saroja ... Petitioners Vs. 1.The Government of Tamil Nadu, represented by its Secretary to Industries Department, Secretariat, Chennai-9.2.The District Collector, Cuddalore District, Cuddalore.3.The Neyveli Lignite Corporation, represented by Chairman, Neyveli.... Respondents Writ Petition has been filed under Article 226 of TheConstitution of India for the issuance of writ of mandamus directingthe respondents to pay compensation as contemplated under theProvisions of Tamilnadu Acquisition of Land for Industrial purposeAct, 1997 to the lands comprised in Survey No.350 in KammapuramVillage, Virudhachalam Taluk, Cuddalore District to the petitioners.For Petitioners : Mr.K.SakthivelFor Respondents : Mrs.D.Geetha, AGP, for R.1 and R.2 Mr.N.A.K.Sharma, for R.3 https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe petitioners have come up with the present writ petitionfor a mandamus directing the respondents to pay compensation ascontemplated under the Provisions of Tamilnadu Acquisition of Landfor Industrial Purpose Act, 1997 to the lands comprised in SurveyNo.350 in Kammapuram Village, Virudhachalam Taluk, Cuddalore District.2. The case of the petitioners, in nutshell, are set outhere under:-2.1. The petitioners are in possession and enjoyment of theAgricultural lands comprised in Survey No.350 in Kammapuram Village,Virudhachalam Taluk, Cuddalore District for more than 50 years.Initially, the petitioners were issued with 'B' memo under the TamilNadu Encroachment Act and later on, they have been provided with 2Cpattas for the said lands by the Government of Tamil Nadu. Thepetitioners are entitled for patta in terms of Governmentnotification that all those persons who have been in possession andenjoyment of Government Poramboke lands for more than five years areeligible for patta for the said land and they have also been providedwith 2C patta confirming their possession and enjoyment.2.2. The Government issued G.O.Ms.No.66, IndustriesDepartment dated 17.05.2005 and thereby accorded administrativesanction for acquiring the lands under the Provisions of Tamil NaduAcquisition of Land for Industrial Purposes Act, 1997, (herein afterreferred to as the Act), for acquiring the lands measuring an extentof 1929.29.85 Hectors in favour of the Neyveli Lignite Corporation.2.3. While so, respondents 1 and 2 have acquired theirlands as per the above administrative sanction under the provisionsof the said Act but, they have neither acquired their lands as perthe said Act nor issued any notice of handing over possession of thesaid lands to the third respondent. When the petitioners came tounderstand that respondents 1 and 2 have handed over symbolicpossession to the third respondent, they sent a representation dated12.05.2008 to the second respondent seeking compensation for vestingtheir lands with the third respondent. On receipt of the same, theSpecial Tahsildar sent a reply dated 03.06.2008 stating that therewas no provision for payment of compensation in respect of Governmentlands. Aggrieved against the same, the petitioners sent a rejoinderdated 30.06.2008 to the second respondent and again the Tahsildarsent a reply dated 25.07.2008 stating that there was no provision topay compensation for the encroached lands as per the Land AcquisitionAct. Hence, challenging the same, the petitioners have filed the presentwrit petition for the relief set out earlier. https://hcservices.ecourts.gov.in/hcservices/

3. Counter affidavit was filed on behalf of respondents 1and 2, wherein the following facts have been set out:-3.1. The encroachers were issued with 'B' memo as per theTamil Nadu Land Encroachment Act and penalty amount was collectedfrom them for their encroachment by Tahsildar, Vridhachalam. No landpatta was issued to the petitioners. Though the Government isimplementing the scheme of giving patta to those who are enjoyingGovernment lands, as the lands encroached by the petitioners arerequired by Neyveli Lignite Corporation for mining purpose, they arenot provided with patta in respect of the lands in question.3.2. Since the lands in question are Government lands,there is no necessity to acquire them under the provisions of thesaid Act. Proposals for alienating the lands to Neyveli LigniteCorporation were sent to Government through Special Commissioner andCommissioner of Land Administration, Chennai by the District RevenueOfficer, Neyveli vide letter dated 04.08.2008. On receipt of theorders from the Government, these lands will be handed over toNeyveli Lignite Corporation.3.3. As the lands under enjoyment of the petitioners areGovernment Poramboke lands, there is no necessity to acquire themunder the provisions of Land Acquisition Act. Since the petitionersare the encroachers of Government Poramboke lands, they will not betreated as interested persons for the lands under the provisions ofthe said Act. As the petitioners are not the land owners / pattadarsand they are only encroachers of the lands, there is no provision formaking payment of compensation under the provisions of the said Act.3.4. The proposals for alienating the lands in R.S.No.350of Kammapuram Village, Vrichachalam Taluk in favour of NeyveliLignite Corporation are pending with the Government. However, thesecond respondent by proceedings dated 13.06.2008, permitted theNeyveli Lignite Corporation to enter upon the said lands and otherlands nearby aggregating an extent of 23.28.5 hectares. Consequentthereto, the lands in question and other similarly placed lands invicinity are in possession of the Corporation since 13.06.2009. Thelands are Government Poramboke lands and the Government has everyright to alienate the same to Neyveli Lignite Corporation.Thus, the counter affidavit of respondents 1 and 2 sought for thedismissal of the writ petition.4. Counter affidavit was filed on behalf of the thirdrespondent, wherein the following facts have been set out:-4.1. The prayer in this writ petition is unsustainable forthe reason that no proceedings were initiated by respondents 1 and 2 https://hcservices.ecourts.gov.in/hcservices/ to acquire the lands in question under the Land Acquisition Act.There is no question of the Government acquiring the lands belongingto it nor can the Government initiate proceedings under the LandAcquisition Act in respect of such lands.4.2. In respect of the allegation that the petitioners arein occupation and enjoyment of the lands in question and their rightwas also recognised by the revenue authorities of respondents 1 and 2by grant of 2C pattas in the name of respective petitioners, it iscontended that no tangible proof in support of such averments in theaffidavit have been produced by the petitioners along with the writpetition. The issues involved in this writ petition are disputedquestions of fact, which cannot be resolved under Article 226 of theConstitution of India.4.3. Since the land in question belongs to the Tamil NaduGovernment, respondents 1 and 2 initiated proceedings to alienate thesaid lands to the Corporation. Accordingly, a publication underSection 6 in Form 1-A of Act 8 of 1923 was made and a 'Tom Tom' wasalso effected in the village on 15.04.2005. Thereupon the RevenueDivisional Officer, Vridhachalam by proceedings dated 03.06.2005,ordered removal of the encroachment in the lands in question and re-classified as Government Tharisu lands. The petitioners have notplaced any materials to show that they have made any objection withrespect to removal of encroachment or reclassification of the lands,even though proper publication had been made on 15.04.2005. Sincethe lands in question are urgently required for the purpose ofmining, on the request of the Corporation seeking permission to enterupon the said land, the second respondent by proceedings dated13.06.2008, permitted the Corporation to enter upon the said landsand other nearby aggregating lands to an extent of 23.28.5 Hectares.4.4. There has been no violation of Articles 14 or 21 or31-A as alleged. There is nothing to show that the petitioners hadbeen issued with any 2C pattas and even if such pattas have beenissued, it would not entitle them for any compensation. If thepetitioners are entitled for any benefits under National Policy onResettlement and Rehabilitation for Project Affected Families, 2007(NRRP, 2007), even though they were not owners of the lands, the samewould be provided to them in terms of and subject to the conditionsstipulated in NRRP, 2007.Thus, the counter affidavit of the third respondent sought for thedismissal of the writ petition.5. Mr.K.Sathivel, learned counsel appearing for thepetitioners, Mrs.D.Geetha, Learned Additional Government Pleader,appearing for respondents 1 and 2 and Mr.N.A.K.Sharma, learnedcounsel appearing for the third respondent have made theirsubmissions based on the pleadings referred to above. https://hcservices.ecourts.gov.in/hcservices/

6. Learned counsel appearing for the petitioners wouldmainly contend that --(i) since respondents 1 and 2 have acquired the lands of thepetitioners which are in their possession, the petitioners areentitled for compensation;(ii) when 2C pattas have been granted in favour of thepetitioners, without paying compensation to them, the lands cannot behanded over to the third respondent;(iii) by granting 2C pattas in favour of the petitioners,respondents 1 and 2 have recognised them as persons being inpossession of the lands and hence, they are entitled for compensation.7. However, it is contended on behalf of the learnedAdditional Government Pleader appearing for respondents 1 and 2 that--(a) 2C pattas have not been issued to the petitioners and noneof them have been issued with patta;(b) there is no necessity to acquire the lands in questionsince the lands belonged to the Government;(c) the petitioners are not interested persons under theprovisions of the Tamil Nadu Acquisition of Land for IndustrialPurposes Act 1997 and hence, there is no provision for making paymentof compensation under the provisions of the said Act.(d) the petitioners are not land owners / pattadars and hence,they have no right to claim compensation;(e) by the proceeding of the second respondent dated13.06.2008, possession of the lands have been handed over to theNeyveli Lignite Corporation. The Government has got every right toconvey its lands to the third respondent since the lands belong tothe Government.8. Learned counsel appearing for the third respondentNeyveli Lignite Corporation would submit the following contentions:-(i) The prayer as framed, is not sustainable for the reasonthat no proceedings were initiated by respondents 1 and 2 to acquirethe lands in question.(ii) Since the lands in question belong to the Government ofTamil Nadu, the question of acquiring the said lands does not arise.(iii) No tangible proof in support of the averment that the https://hcservices.ecourts.gov.in/hcservices/ petitioners have been issued with 2C pattas, is produced before thisCourt. (iv) Even if 2C pattas were issued in favour of thepetitioners, it will not entitle them for any compensation.(v) The possession of the lands in question was taken over bythe third respondent and if the petitioners are entitled for anybenefits under National Policy on Resettlement and Rehabilitation forProject Affected Families, 2007 (NRRP 2007), they would be providedwith the benefits, provided, if they are entitled for the same. 9. Considering the said submissions made by the learnedcounsel appearing for the petitioner as well as learned AdditionalGovernment Pleader appearing for respondents 1 and 2 and the learnedcounsel appearing for the third respondent, the following findingsemerge:-(i) It is the case of the petitioners that they are inpossession and enjoyment of the lands in question by virtue of grantof 2C pattas in their favour. However, the said fact is disputed bythe learned Additional Government Pleader appearing for respondents 1and 2 and the learned counsel appearing for the third respondent. Tosubstantiate their claim that they are issued with 2C pattas, asrightly contended on behalf of the respondents, no document isforthcoming on the side of the petitioners. None of the petitionershave produced documents to substantiate their plea that 2C pattashave been granted in their favour. In view of the same, the one andonly conclusion that could be arrived at is that the petitioners arenot issued with 2C pattas.(ii) It is the case of the petitioners that they are inpossession and enjoyment of the lands in question time immemorial andthat they are entitled for compensation. It is not in dispute andthe petitioners did, in fact, not claim that the lands in questionbelonged to them. The entire affidavit filed in support of the writpetition makes it amply clear that the petitioners are not claimingcompensation on the ground that they are the owners of the lands.Their entire case centres around that they are in possession andenjoyment of the lands in question by virtue of their being inpossession of the lands and by virtue of 2C pattas granted to them.When the petitioners are not the owners of the lands and when theyare not in possession of the lands by virtue of ownership over thelands, they are not entitled for compensation. Compensation could beawarded only if the lands belonging to the petitioners are takenpossession by virtue of land acquisition proceedings. In the case onhand, even as per the case of the petitioners, they are not theowners of the lands and hence, they are not entitled for compensation.(iii) Then, the next question arises for consideration is, https://hcservices.ecourts.gov.in/hcservices/ whether the petitioners being in possession of the lands by paying"B" memos, are entitled for any compensation. The petitioners, whoare paying 'B' memos for the lands in which they are in possession,have to be considered only as encroachers. 'B' memo viz., penalcharges would be levied and received from the persons who are inencroachment of the Government properties. They cannot be consideredas owners or persons in lawful possession. Hence, the question ofcompensation to the petitioners may not arise. At the maximum theywill be entitled for a notice before they are asked to vacate thelands. Even this question does not arise for consideration heresince the plea of the petitioners are only a claim for compensationand not that they are sought to be vacated or evicted without dueprocess of law.(iv) In respect of the subject lands, respondents 1 and 2 seemto have initiated proceedings to alienate the lands to the NeyveliLignite Corporation. A publication under Section 6 in form 1-A ofthe Act 8/2003 was said to be made and a 'tom tom' was also effectedin the Village on 15.04.2005. Thereupon, the Revenue DivisionalOfficer, Vridhachalam, in his proceedings dated 06.03.2006, seems tohave ordered removal of the encroachment in the lands and re-classified as Government Tharisu lands. It seems, the petitionershave not placed any materials to show that they have made anyobjection with respect to removal of encroachment or re-classification of the lands even though publication was effected on15.04.2005. In fact, this point raised in the counter affidavitfiled on behalf of the third respondent is not disputed by filingreply for the same.(v) The Special Tahsildar, Land Acquisition, Neyveli, on arequest made by the petitioners for payment of compensation, byproceedings dated 03.06.2008, seems to have rejected their requestfor compensation on the ground that since the lands in question areGovernment Poramboke lands and they are not entitled forcompensation. Aggrieved over the same, the petitioners sent arejoinder dated 30.06.2008 to the second respondent and again theSpecial Tahsildar sent a reply dated 25.07.2008 stating that there isno provision to pay compensation for the encroached lands as per theAct. The petitioners admittedly have not challenged those orderseven though those orders find place in the typed set of papers filedby them.(vi) The petitioners have come up with the present writpetition for a mandamus directing the respondents to pay themcompensation for acquiring the lands in question. A writ of mandamuscan be issued only for enforcing a legal right. In A.I.R. 1977SUPREME COURT 276 – M.S.Jain v. State of Haryana, Their Lordshipshave held that no one can ask for a mandamus without a legal right.There must be a judicially enforceable right as well as legallyprotected right before one suffering a legal grievance can ask for a https://hcservices.ecourts.gov.in/hcservices/ mandamus. Para 9 of the said judgment is usefully extracted hereunder:-"9. The High Court rightly dismissed the petitions. Itis elementary though it is to be restated that no one canask for a mandamus without a legal right. There must be ajudicially enforceable right as a legally protected rightbefore one suffering a legal grievance can ask for amandamus. A person can be said to be aggrieved only when aperson is denied a legal right by some one who has a legalduty to do something or to abstain from doing something."(vii) Again in A.I.R. 2002 SUPREME COURT 1598 – Directorof Settlements, A.P. v. M.R.Apparao, Their Lordships have held that anotice can be issued only if he or she has got a legal right whichhas been infringed. Para 17 of the said judgment is usefully re-produced here under:-" 17. Coming to the third question, which is moreimportant from the point of consideration of the HighCourt’s power for issuance of mandamus, it appears that theConstitution empowers the High Court to issue writs,directions or orders in the nature of habeas corpus,mandamus, prohibition, quo warranto and certiorari for theenforcement of any of the rights conferred by Part III andfor any other purpose under Article 226 of the Constitutionof India. It is, therefore essentially, a power upon theHigh Court for issuance of high prerogative writs forenforcement of fundamental rights as well as non-fundamental or ordinary legal rights, which may come withinthe expression “for any other purpose”. The powers of theHigh Courts under Article 226 though are discretionary andno limits can be placed upon their discretion, they must beexercised along the recognised lines and subject to certainself-imposed limitations. The expression “for any otherpurpose” in Article 226, makes the jurisdiction of the HighCourts more extensive but yet the Courts must exercise thesame with certain restraints and within some parameters.One of the conditions for exercising power under Article226 for issuance of a mandamus is that the Court must cometo the conclusion that the aggrieved person has a legalright, which entitles him to any of the rights and thatsuch right has been infringed. In other words, existence ofa legal right of a citizen and performance of anycorresponding legal duty by the State or any publicauthority, could be enforced by issuance of a writ ofmandamus. “Mandamus” means a command. It differs from thewrits of prohibition or certiorari in its demand for someactivity on the part of the body or person to whom it isaddressed. Mandamus is a command issued to direct any https://hcservices.ecourts.gov.in/hcservices/ person, corporation, inferior courts or Government,requiring him or them to do some particular thing thereinspecified which appertains to his or their office and is inthe nature of a public duty. A mandamus is availableagainst any public authority including administrative andlocal bodies, and it would lie to any person who is under aduty imposed by a statute or by the common law to do aparticular act. In order to obtain a writ or order in thenature of mandamus, the applicant has to satisfy that hehas a legal right to the performance of a legal duty by theparty against whom the mandamus is sought and such rightmust be subsisting on the date of the petition "Thus, as stated already, since the petitioners are not having anylegally enforceable right, the relief that has been sought for bythem cannot be granted. 10.1. Learned counsel appearing for the petitioners reliedon the decision reported in (1994) 5 Supreme Court Cases 239 – InderParshad v. Union of India and others and contended that once thepatta is granted to an individual and later if the land is requiredfor public purpose, the title vests with the grantee and thereforethe grantee is entitled to full compensation of the acquired land.10.2. However, the said judgment will not be of any use tothe petitioners since as stated already, the petitioners have notestablished that they have been granted with 2C pattas.10.3. The other judgment that has been relied on by thelearned counsel appearing for the petitioners is reported in CDJ 2006SC 1152 – U.P.State Industrial Development Corporation v. RishabhIspat Ltd., & others. That is the case where the High Court foundthat there was no evidence whatsoever to substantiate the plea thatthe claimants were in illegal and unauthorised possession of thelands, which had vested in the State of Uttar Pradesh. Further, theHigh Court of Uttar Pradesh also noted that the Special LandAcquisition Officer offered compensation to the claimants and later,in a proceedings under Section 18 of the Act, it has been contendedthat the claimants are unauthorised occupants of the lands. In suchcircumstances, the Hon'ble Apex Court has held that the High Courtwas right in holding that there was no material on record to provethat some of the claimants were unauthorised occupants of theGovernment lands and not entitled to compensation for such lands.Further, it has been held that the High Court was also justified inholding that in a reference under Section 18 of the Act, such acontention cannot be raised, because matters that may be consideredby a Court in a reference under Section 18 of the Act are mattersenumerated in Section 18 itself as also the following sections.Thus, the said judgment may not be of any relevance to the facts onhand. In the present case on hand, it is contended even in the https://hcservices.ecourts.gov.in/hcservices/ beginning stage itself, that the petitioners are encroachers and thatthey are not entitled for any compensation.10.4. The next judgment that has been cited by the learnedcounsel appearing for the petitioners is the judgment of the DivisionBench of this Court reported in CDJ 2008 MHC 5382 – Ramaratna Theatrev. The State of Tamil Nadu, rep. by the Secretary to Government, Home(Cinema) Department & Others. The matter in issue that has been putforth before the Division Bench was "whether the cancellation of 'C'form licence issued to Ramaratna Theatre, the appellant in the saidmatter, on the ground that the theatre is in existence in aGovernment Poramboke land, is valid or not. 10.5. Rule 13 (1) of the Tamil Nadu Cinemas (Regulations)Rules, 1957 envisages that if the applicant for the licence is theowner of the site, building and equipment, he shall produce to thelicensing authority the necessary records relating to his ownershipand possession thereon. If he is not the owner, he shall, to thesatisfaction of the licensing authority, produce documentary evidenceto show that he is in lawful possession of the site, building andequipment. While considering the said aspect, the Division Bench hasheld that issuance of 'B' memo would amount to possession recognisedby the Government. Further, it has been held that no documents wereplaced before the licensing authority to show that the land is aGovernment poramboke land except the statement of the licensingauthority. Thus, the Division Bench of this Court while consideringthe provisions of Tamil Nadu Cinemas (Regulations) Act, 1955, whichrecognises a person in lawful possession of the site for grant of 'C'form licence, has held that the possession of the theatre cannot beheld to be illegal, though it may be an encroacher. 10.6. However, the position in the case on hand is entirelydifferent. In the case on hand, the petitioners would be entitled tocompensation only if they are the owners of the lands and are inlawful occupation or possession of the same. Since I have alreadyheld that the petitioners at best could be termed only asencroachers, they are not entitled to compensation. Thus, thejudgment cited above, also may not be helpful to the case of thepetitioners.11. Learned counsel appearing for the third respondentrelied on the judgment reported in JT 2003 (1) SC 18 – Sharda Devi v.Stateof Bihar & Anr. wherein, in para 24, the Hon'ble Apex Court hasheld as follows:-"... A dispute as to pre-existing right or interest ofthe State Government in the property sought to be acquiredis not a dispute capable of being adjudicated upon orreferred to the Civil Court for determination either underSection 18 or Section 30 of the Act. The reference made by https://hcservices.ecourts.gov.in/hcservices/ the Collector to the Court was wholly without jurisdictionand the civil Court ought to have refused to entertain thereference and ought to have rejected the same. All theproceedings under Section 30 of the Act beginning from thereference and adjudication thereon by the Court suffer fromlack of inherent jurisdiction and are therefore, a nullityliable to be declared so".11.1. In the same judgment, the judgment reported inA.I.R. 1921 Oudh 31 – Mohammad Wajeeh Mirza v. Secretary of State forIndia in Council had been referred to. The said passage is usefullyextracted here under:-" ... that the question of title arising between thegovernment and another claimant cannot be settled by thejudge in a reference under Section 18 of the Act. When thegovernment itself claims to be the owner of the land therecan be no question of its acquisition and the provisions ofthe Land Acquisition Act cannot be applicable. In ouropinion the statement of law so made by the learned JudicialCommissioners is correct".11.2. Yet another decision that has been relied on by thelearned counsel appearing for the third respondent is reported inA.I.R. 1964 Supreme Court 685 – State of Orissa v. Ram Chandra. Itwould be useful to extract para 12 of the said judgment and the sameis extracted here under:-"12. Mr Tatachari, however, has contended that theright on which the petitions of the respondents are foundedis a right flowing from the respondents’ continuouspossession of the properties for many years, and he arguesthat if such a right is proved, the High Court would bejustified in issuing a writ protecting that right. Thisargument is clearly fallacious. Mere possession of theproperty for however long a period it may be, will notclothe the possessor with any legal right if it is shownthat the possession is under a grant from the State which isresumable. Such long possession may give him a legal right,to protect his possession against third parties, but asbetween the State and the grantee, possession of the granteeunder a resumable grant cannot be said to confer any righton the grantee which would justify a claim for a writ underArticle 226 where the grant has been resumed. In dealingwith this argument, we have assumed without deciding, thatthough a suit under Section 9 of the Specific Relief Actwould have been incompetent against the appellant, a similarrelief can be claimed by the respondents against theappellant under Article 226. Even on that assumption, no https://hcservices.ecourts.gov.in/hcservices/ right can be claimed by the respondents merely on the groundof their possession, unless their right to remain inpossession is established against the appellant, and thiscan be done if the grant is held to be not resumable. "12. The above referred judgments will amply prove that ifa State Government has got a right or interest over the property inquestion, a person in possession however long it may be, will notclothe with any legal right.13. Thus, considering the above facts and circumstances,the irresistible conclusion that could be arrived at is that thepetitioners, who are not having any legal right over the lands inquestion, are not entitled for any compensation.14. In fine, the writ petition stands dismissed. However,there is no order as to costs. Consequently, connected miscellaneouspetition is closed.sbi Sd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary to Industries Department, Government of Tamil Nadu, Secretariat, Chennai-9.2.The District Collector, Cuddalore District, Cuddalore.3.The Chairman, Neyveli Lignite Corporation, Neyveli.+ 1 CC to Mr.K.SekthivelAdvocate SR.No.41705+ 1 CC to Government Pleader Advocate SR.No.42333+ 1 CC to Mr. N.A.K.Sharma Advocate SR.No.42388 W.P.No.30199 of 2008VSN(CO)VC(18.09.2009)