Mrs. Divya J.Dolia v. The Secretary Government of Tamil Nadu Industries Department & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 07.08.2009CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE RAJA ELANGOW.A. NOS. 97 & 98 OF 20091. Mrs. Divya J.Dolia2. Mrs. Beena K.Dolia.. Appellant in both the appeals- Vs -1. The Secretary Government of Tamil Nadu Industries Department Fort St. George, Chennai 600 009.2. The Special Tahsildar Land Acquisition SIPCOT, Unit – III Sriperumbudur Scheme No.37, Bangalore Trunk Road Sriperumbudur 602 105.3. The Managing Director SIPCOT, 19-A Rukmani Lakshmipathy Road Egmore, Chennai 600 008.4. The Senior Project Manager SIPCOT, Irungattukottai Project Pattunool Chathiram Opposite Panchayat Union Office Sriperumbudur 602 105.5. Ms/.Pasteur Health Care India Private Ltd. No.19, Eswaran Koil Street Alandur, Chennai 600 016 rep. by its Director, Mr.N.Jayachandran .. RR-1 to 5 in both the appeals6. Ms/.Shyam Trading Corporation New No.5, Lakshmi Street Flat No.3B, Kilpauk Chennai 600 010... R-6 in WA No.97/08 https://hcservices.ecourts.gov.in/hcservices/ Writ Appeals filed against the order dated 13th Oct., 2008,passed by learned single Judge in W.P. No.34469 of 2005 and 19705 of2008.W.P.No.19705 of 2008 is filed under Art.226 of Constitution ofIndia to issue a Writ of Certiorarified Mandamus calling for therecords relating to the land acquisition proceedings pertaining topetitioner's property, leading to the 2nd respondents award No.3/99(R.C.No.32/97 dated 29.11.99 and quash the same and consequentlydirect the respondents 1 to 4 to cancel all encumbarance createdpursuant to the Award No.3/99 dated 29.11.99 including allotmentorders to the 5th and 6th respondents or leases made upon petitionersproperty, namely Acres 2.06 Cents of land along with industrialbuilding in survey No.1542/1-A (0.62 Acres) also referred to assurvey No.1542/1 A2 B, extent 0.25.0 Hectare, S.No.1542/I-B (0.24Acres also referred to an Survey No.1542/IB2 extent 0.09.5 Hectare)and S.No.1542/B(1.20 Acrs also referred to as Survey No.1542/3A,0.09.5 Hectare, 1542/3B, 0.39.0 Hectare in Sriperumbudur Village,V.R.P.Chathiram on the Bangalore Trunk Road, Sriperumbadur TalukW.P.No.34469/05 is filed under Art.226 of the Constitution ofIndia to issue Writ of Mandamus to forbear the respondents theiragents, from interfering in any manner with petitioner's posessionof property namely 2.06 cents of land along with industrial building,in Survey No.1542/1-A(0.62 Acres), S.No.1542/1-B(0.24 Acres) andS.No.1542/B(1.20 Acres) in Sriperumbudur Village V.R.P.Chathiram onBangalore Trunk Road, Sriperumbudur T.K. in accordance withproceedures envisaged under Land Acquistion Act 1984 as amended.For Appellants : Mr. K.Azhagirisamy, SC, for Mr. K.J.RebelloFor Respondents: Mr. P.Wilson, AAG, assisted by Mr. M.Devaraj for R-3 Mr. D.Sreenivasan, AGP, for RR1 & 2 Mr. P.Sukumar for R-4COMMON JUDGMENTS.J.MUKHOPADHAYA, J.As both the appeals arise out of common order and appellants arecommon, they were heard together and disposed of by this commonjudgment.2. The land of the appellants were acquired under the LandAcquisition Act, 1894 (hereinafter referred to as the 'Act'). At https://hcservices.ecourts.gov.in/hcservices/ that stage, writ petitions were filed by the appellants for mandamusforbearing the respondents from interfering with their possession ofproperties to an extent of 2.06 acres along with industrial buildingcomprised in survey No.1542/1A (0.62 acres); survey No.1542/1B (0.2acres) and survey No.1542/3 (1.20 acres) in Sriperumbudur Village,V.R.P. Chatram, Bangalore Trunk Road, Sriperumbudur Taluk, except inaccordance with the procedure envisaged under the Act. One of theappellant filed the other writ petition challenging the award passedby the 2nd respondent in Award No.3/99 dated 29th Nov., 1999 withfurther prayer to direct respondents 1 to 4 to cancel the encumbrancecreated pursuant to Award No.3/99, including the allotment ordersissued in favour of respondents 5 and 6 or any lis made on theappellant's property. Learned single Judge dismissed the writ petitions and, hence, thewrit appeals were preferred.3. At the time of admission of the appeals, the appellants arguedthe case in person. The main plea was taken that the StateGovernment neither informed the appellants with regard to acquisitionof their lands and awards were passed without notice and withouthearing them. It was further informed that G.O. Ms.61 dated 5thMarch, 1998, issued from Industries Department was initiallychallenged by them in a writ petition, but pursuant to the Court'sorder when they represented the matter before the State, they came toknow that the Government Order issued u/s 4 (1) of the Act does notrelate to their lands. In the year 2005, when SIPCOT approached todispossess them, these writ petitions were preferred and later on, in2008 the appellants have come to know of the award. Only thereafter,they challenged the award by filing the writ petition in the year2008 and, therefore, there was no delay on their part.4. At the time of hearing, two short points were raised bylearned counsel for the appellants before this Court. But, beforediscussing such issues, it is desirable to notice the relevant facts,as mentioned hereunder :-The State Government granted administrative sanction by G.O. Ms.No.61 dated 24th Feb., 1997 for acquisition of 0.27.08.0 Hectares ofpatta land and also for alienation of an extent of 62.72.0 Hectaresof poramboke land in villages of Pondur, Irungulam, Araneri,Mambakkam, Thirumangalam, Sirumangadu and Santhavelur inSriperumbudur Taluk for setting up industrial complex by invoking theurgency clause of Section 17 (1) of the Land Acquisition Act. DraftNotification u/s 4 (1) was approved on 24th March, 1997, which wasgazetted on 25th Sept., 1997 vide G.O. Ms. No.245. Publication wasmade in 2 dailies, 'Malai Malar' and 'Malai Kathir' on 5th Oct., 1997,in terms of Section 4 (1). Local publication was also made by beatof 'tom tom' on 4th Nov., 1997. Draft declaration u/s 6 was approved https://hcservices.ecourts.gov.in/hcservices/ on 12th Nov., 1997 and Declaration u/s 6 was published in the Gazetteon 13th Nov., 1997. Such Declaration u/s 6 was also published in 2newspapers 'Malai Kathir' and 'Malai Murasu' on 27th Nov., 1997,followed by local publication made on 4th Dec., 1997.Notices were issued to the petitioner u/s 9 (1) on 10th Dec.,1997. It was also published in the village on 10th Dec., 1997. Theappellants received the individual notices on 2nd Jan., 1998,whereinafter the award enquiry was made on 25th Aug., 1998 and 12thNov., 1999 and on deposition of award amount, possession of surveyNo.1542/1B2, 1542/3 and 1542/2B were taken on 17th Nov., 1999 by theSpecial Tahsildar and handed over to SIPCOT on the same day.Possession of the other lands having S. No.1542/1A2B was taken andhanded over on 12th Feb., 2001. Total award amount was deposited by29th Nov., 1999 when the award was passed.5. Learned counsel for the respondents informed that an interimorder was passed by this Court on 25th Oct., 2005 in W.P. No.34469/05,wherein it was ordered not to dispossess the petitioners if alreadynot dispossessed. But, much before the same, the petitioners havebeen dispossessed from their respective lands on 17th Nov., 1999 and12th Feb., 2001. The lands have been allotted in favour of PasteurHealth Care and Sam Trading Corporation.6. Learned counsel for the appellants submitted that the findingof learned single Judge that the appellants are guilty of laches isincorrect, the knowledge of the award passed in the year 1991 wasmade known only on 18th March, 2008 when the 3rd respondent filed acopy of the award. It was submitted that the award was nevercommunicated to the appellant though it is incumbent to do so u/s 12(2) of the Act. Referring to the said provision (Section 12 (2)) andjudgment of the Supreme Court in Harish Chandra – Vs – Deputy L.A.Officer (AIR 1961 SC 1500), it was submitted that the copy of theaward having not supplied to the appellants, it should be held thatthere is no award in the eye of law and having made known to theappellants on 18th March, 2008, it should be held that the award isbeyond the period of limitation.He also placed reliance on Supreme Court decision in State ofU.P. - Vs – Rajeev Gupta (1994 (5) SCC 686), wherein the SupremeCourt held that if no award is made within the specified period, theentire proceeding of acquisition of land shall lapse. In otherwords, on expiry of two years from the date of publication ofDeclaration u/s 6, unless the proviso is attracted, if no award ismade in the meantime, in the eye of law the proceeding initiated u/s4 (1) of the Act culminated into the Declaration made u/s 6 shallstand lapsed and no proceeding, in the eye of law, thereafter wouldexist to take further action. https://hcservices.ecourts.gov.in/hcservices/

7. Learned counsel appearing on behalf of the respondents whilesubmitted that the petitioners had knowledge with regard to theproceeding, it was argued that the proceeding u/s 4 (1) orDeclaration u/s 6 earlier having not challenged, inspite ofknowledge, the writ petition against the land acquisition proceedingafter issuance of award is not maintainable. He placed reliance onone or other decision of Supreme Court, which will be discussed atthe appropriate stage. It was further contended on behalf of therespondents that subsequent writ petitions against the landacquisition proceeding will be barred by principles of res judicatainasmuch as while preferring the earlier writ petition the appellantsnever chose to challenge the land acquisition proceeding u/s 4 (1) orthe Declaration u/s 6 though they had knowledge with regard to thesame.8. We have heard the learned counsel for the parties and noticedthe rival contentions.9. From the record it will be evident that the petitioners wereserved with notice dated 10th Dec., 1997 u/s 9 (1) and 10, which werereceived by Ms.Divya Dolia on 2nd Jan., 1998. A copy of the noticeand service report have been enclosed by the 2nd respondent. Thepossession was taken by the Special Tahsildar on 17th Nov., 1999 and12th Feb., 2001 and handed over to SIPCOT. The documents with regardto taking over possession and handing over is also brought on record.Inspite of knowledge of such notice dated 10th Dec., 1997, served onthe appellants on 2nd Jan., 1998, when the writ petition, W.P.No.19713/99 was filed by the appellant on 8th Dec., 1999, for reasonsbest known to them, they suppressed the aforesaid fact that they havealready received the notice with regard to award enquiry inconnection with the land acquisition proceeding in question.10. Learned counsel for the appellants referred to an ordercontained in Rc. No.32/97 dated 13th Nov., 1999 passed by the SpecialTahsildar (LA), SIPCOT, wherein reference of one G.O. Ms. No.61 dated5th March, 1998, issued from the Industries Department has been made.It was submitted that by giving wrong reference to the G.O. Ms. No.61dated 5th March, 1998, the appellants were misguided by therespondents. But such submission cannot be accepted in view of thefact that the copy of the order contained in Rc. No.32/97 dated 13thNov., 1999 was not communicated to the appellant and it was aninternal communication made by the Officer to the Sub Treasury,Sriperumbudur and the District Revenue Officer (LA) for the purposeof intimating the compensation amount to which owners/interestedpersons are entitled.11. Inspite of receipt of notice by the appellants on 2nd Jan.,1998, apart from the fact that they have not brought the aforesaidfact to the notice of the Court in W.P. No.19713/99, the appellants https://hcservices.ecourts.gov.in/hcservices/ did not choose to appear before the Collector by raising a disputewith regard to the compensation amount. Now, for their laches, theywant to derive advantage of sub-section (2) to Section 12 by statingthat they should have been forwarded with a copy of the award, if notappeared before the Collector at the time of award and non-supply ofthe same will vitiate the total proceeding.In this connection, we may refer Supreme Court decision in HarishChandra (supra). In the said case, Supreme Court, while dealing withthe expression “date of award” used in proviso (b) to Section 18 (2)of the Act, held that for the purpose of Section 18 (2) (b), it mustmean the date on which the award is either communicated to the partyor is known by him either actually or constructively. Such findinghas been given for the purpose of finding out the period oflimitation. In the said case, the Supreme Court made certainobservations, relevant portion of which is quoted hereunder :-“6. ........ Thus considered the making of the awardcannot consist merely in the physical act of writingthe award or signing it or even filing it in theoffice of the Collector; it must involve thecommunication of the said award to the party concernedeither actually or constructively. If the award ispronounced in the presence of the party whose rightsare affected by it, it can be said to be made whenpronounced. If the date for the pronouncement of theaward is communicated to the party and it isaccordingly pronounced on the date previouslyannounced the award is said to be communicated to thesaid party even if the said party is not actuallypresent on the date of its pronouncement. Similarly,if without notice of the date of its pronouncement anaward is pronounced and a party is not present theaward can be said to be made when it is communicatedto the party later. The knowledge of the partyaffected by the award either actual or constructive,being an essential requirement of fair play andnatural justice the expression “the date of the award”used in the proviso must mean the date when the awardis either communicated to the party or is known by himeither actually or constructively. In our opinion,therefore, it would be unreasonable to construe thewords “from the date of the Collector's award” read inthe proviso to S.18 in a literal or mechanical way.7. In this connection it is material to recall thefact that under S. 12 (2) it is obligatory on theCollector to give immediate notice of the award to thepersons interested who are not present personally or https://hcservices.ecourts.gov.in/hcservices/ by their representatives when the award is made. Thisrequirement itself postulates the necessity of thecommunication of the award to the party concerned.The Legislature recognises that the making of theaward under S. 11 followed by its filing under S. 12(1) would not meet the requirements of justice morebringing the award into force. It is right that thecommunication of the award to the party concerned wasalso necessary and so by the use of the mandatorywords an obligation is placed on the Collector tocommunicate the award immediately to the personconcerned. It is significant that the sectionrequires that the Collector to give notice of theaward immediately after making it. This proviso lendssupport to the view which we have taken about theconstruction of the expression “from the date of theCollector's award” in the proviso to S.18. It isbecause communication of the order is regarded by theLegislature as necessary that S. 12 (2) has imposed anobligation on the Collector to see if the relevantclause in the proviso is read in the light of thisstatutory requirement and it tends to show that theliteral and mechanical construction of the said clausewould be wholly inappropriate. It would indeed be avery curious result that the failure of the Collectorto discharge his obligation under S. 12 (2) shoulddirectly tend to make ineffective the right of theparty to make an application under S. 18, and thisresult could not possibly have been intended by theLegislature.”12. In the present case, it will be evident that the appellantswere given individual notice on 10th Dec., 1997, served on 2nd Jan.,1998 for award enquiry. Inspite of that, the appellants did notchoose to appear and the award was finally passed on 29th Nov., 1999.Therefore, it cannot be stated that the petitioners had no knowledgeof the action taken for preparation of the award. Apart from theaforesaid fact, it will be evident from the Supreme Court judgmentthat the interpretation of Section 12 (2) has been made for thepurpose of limitation under proviso (b) to Section 18 (2). For thepurpose of limitation, while it is true that the date of knowledge ofaward is to be noticed, that cannot be a ground to render the totalacquisition proceeding illegal, though it may be a good ground tomaintain the petition u/s 18 (1) for enhancement of compensation.In this case, admittedly, Declaration u/s 6 was made on 10thDec., 1997 and award was passed on 29th Nov., 1999, which is wellwithin two years. Inspite of notice, if the appellant did not chooseto appear and states that they have come to know of the award on 18th https://hcservices.ecourts.gov.in/hcservices/ March, 2008, they may take advantage of such knowledge for thepurpose of challenging the award u/s 18 (1), but not for the purposeof counting the period of two years from the date of declaration u/s6.13. It is not in dispute that both the writ petitions have beenpreferred much after the final award was passed. In MunicipalCouncil, Ahmednagar –Vs- Shah Hyder Beig & Ors. (2000 (2) SCC 48),Supreme Court held that a writ petition filed after publication ofaward is not maintainable.A Division Bench of this Court in Ramalingam & Ors. - Vs – Stateof T.N. (2005 (3) CTC 1), also held that challenge to acquisitionproceeding after passing of award is not maintainable.Similar was the view of this Court in S.Harshavardhan & Anr. - Vs– State of T.N. (2005 (3) CTC 691), wherein the Court observed that awrit petition challenging the land acquisition proceeding should notbe entertained after award has been passed. No writ would lie afterpassing of the award.14. As the appellants had knowledge with regard to the landacquisition proceeding as back as in January, 1998, after about 6years it was not open to the appellant to challenge the award. Wefind no illegality in the order passed by learned single Judge. Thewrit appeals are accordingly dismissed. There shall be no order asto costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarGLNTo1. The Secretary Government of Tamil Nadu Industries Department Fort St. George, Chennai 600 009.2. The Special Tahsildar Land Acquisition SIPCOT, Unit – III Sriperumbudur Scheme No.37, Bangalore Trunk Road Sriperumbudur 602 105. https://hcservices.ecourts.gov.in/hcservices/

3. The Managing Director, SIPCOT, 19-A, Rukumani Lakshmipathy Road, Egmore, Chennai-84.The Senior Project Manager, SIPCOT, Irungattukottai, Pattunool Chathiram Project, Opp.Panchayat Union Office, Sriperumbudur-602 105.1 cc To Mr.K.J.Rebello, Advocate, SR.364961 cc To Mr.M.Devaraj, Advocate, SR.36508 W.A. NO. 97 & 98 OF 2009ka(co)pmk.17.8.2009