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Judgment
S.S. Subramani, J.—We will first dispose of the writ petitions.
W.P. No. 13889 of 1986:
In W.P.13889 of 1986, Petitioner challenges the land acquisition proceedings including the notification published under 4(1) of the Land Acquisition Act dated 26.6.1974 till date of passing of Award No. 5 of 1986 dated 15.5.1986 received by Petitioner on 3.12.1986 in respect of T.S. No. 34, Block No. 9, measuring 1173 Sq.ft situated in the Village of Mambalam of Mambalam - Guind. y Taluk, Madras Distric and quash the same.
Petitioner has purchased the property as per sale deed dated 22.1.1976 and the building has been let out to various tenants. According to her, she is widow and depends upon the rental income received from the tenants. She has no other properties.
According to Petitioner, she is not aware of the Land Acquisition proceedings initiated by Respondent nor she has received any notice from January, 1976. All of a sudden she was served with notice on 3.12.1986 u/s 12(2) of the Land Acquisition Act on K.A.M. Hassah, who is collecting rent from the tenants. Notice was handed over to Petitioner by the agent. It is said that the award was passed without notice to her and she has not been given opportunity to put forth any objection all these years. It is said that the award is vitiated in view of the inordinate delay and for various reasons it is liable to be quashed. She also makes mention of W.P. No. 13318 of 1986 filed by the Station Road Merchants Association challenging the acquisition proceedings.
According to us, the Writ Petition itself is not maintainable and on that short ground itself, the writ petition is to be dismissed. It is admitted in Writ Petition itself that notification u/s 4(1) of Land Acquisition Act was published on 26.6.1974. Petitioner obtained sale deed only on 22.1.1976, i.e., after the notification. That itself disentitles Petitioner to challenge the notification.
In the decision reported in U.P. Jal Nigam, Lucknow through its Chairman and another Vs. M/s. Kalra Properties (P) Ltd. Lucknow and others, ,in paragraph 3, their Lordships held thus,
...That apart, since M/s Kalra properties, Respondent had purchased the land after the notification u/s 4(1) was published, its sale is void against the State and it acquired no right, title or interest in the land. Consequently, it is settled law that it cannot challenge the validity of the notification or the regularity in talcing possession of the land before publication of the declaration u/s 6 was published.
The same principle was reiterated in Star Wire (India) Ltd. Vs. State of Haryana and Others, wherein their Lordships considered earlier decisions also. In paragraph 3 of the Judgment, their Lordships held thus,
.... In Gurmukh Singh and Others Vs. The State of Haryana, , this Court had held that a subsequent purchaser is not entitled to challenge the legality of the acquisition proceedinggs on the ground of lack of publication of the notification. In Yadu Nandan Garg Vs. State of Rajasthan and Others, and Smt. Sneh Prabha etc. Vs. State of U.P. and Another, this Court had held that the alienations made by the erstwhile owner of the land after publication of the notification u/s 4(1) do not bind either the State Government or the beneficiary for whose benefit the land was acquired. The purchaser does not acquire any valid title. Even the colour of title claimed by the purchaser was void. The beneficiary is entitled to have absolute possession free from encumbrance. In U.P. Jal Nigam, Lucknow through its Chairman and another Vs. M/s. Kalra Properties (P) Ltd. Lucknow and others, , this Court had further held that the purchaser of the property after the notification under Section. 4(1) was published, is devoid of right to challenge the validity of the notification or irregularity in taking possession of the land before publication of the declaration u/s 6.
In view of these decisions, we do not think that Petitioner is entitled to challenge the acquisition proceedings. Again, there is no explanation in coming to this Court after 10 years of purchase. The long delay is not explained.
For the above reasons, W.P.13809 of 1986 is dismissed.
W.P. No. 13318 of 1986 and WA.548 of 1997
W.P.13318 of 1986 is filed by Station Road Merchants'' Association and various tenants, who are occupants of various shops in the acquired lands.
In W.A.548 of 1997, Appellant wants to set aside the order of learned single Judge in W.P.13265 of 1986. There also the Merchants'' Association and various tenants are Appellants. Learned Judge found that the tenants have received noticce from the inception of Land acquisition proceedings and in spite of the same they kept silent. Therefore, due to long delay in approaching the Court, the fact which has to be considered in invoking the extraordinary original jurisdiction, learned Judge dismissed the W.P. No. 13265 of 1986 on the ground of delay and laches.
It is held by the Division Beach of this Court in W.A.63 of 1991, consisting of Justice A.S. Anand (as he then was) and Justice D. Raju (as he then was) that the writ petition filed by the tenants challenging the acquisition proceedings is not maintainable. The Division Bench found that W.P.2740 of 1983 was dismissed by learned single Judge by judgment dated 20.12.1990 following the law laid down in Sambanda Rao, T.K. a registered partnership Firm v. The Union Territory of Pondicherry 1984 VLR 134. In that case, the Division Bench held thus,
..... It has been found by this Court on occasion more than one, that a tenant has no locus standi to put forth objections to these acquisition or to question the proceedings through a Writ Petition.
The attempt of the Appellant to question the acquisition proceedings only in his capacity as a tenant had necessarily to fail, and the writ petition was rightly dismissed. We find no reason to take a view different from the one taken by the learned single Judge."
For the above reasons, W.A.548 of 1997 and W.P. No. 13318 of 1986 are dismissed.
What remains to be considered is W.A.549 of 1997.
W.P.13263 of 1986 is filed by power of attorney of land owner. Petitioner/Appellant became owner of the land on 10.5.1971, bearing T.S. No. 35, Block No. 9, (Old No. 22, New No. 60) at Kuppiah Street, West Mambalam, Madras-33. Above land was let out to various tenants for non-residential purposes. Petitioner/Appellant is permanently employed in North West Africa.
According to the Petitioner, one Honab was collecting rents from various tenants for some time and he died about six years before filing writ petition. Thereafter, one H.G. Hussain was collecting rents for about two years and on account of some disputes, he also stopped collecting rents. From 1984 onwards rents were not collected by anyone. Power of Attorney was then given to Rehrnan Sheriff after he retired as Tahsildar.
It is submitted in the affidavit that on 20.11.1996, when he contacted the tenants, he was informed that the properties were noticed for acquisition and steps have been taken by Respondent for acquiring the same. On enquiry it was confirmed that properties belonging to his son-in-law has been notified for acquisition and an award has been passed. Notification is dated 26.4.1972. An amounts of Rs. 99,966.33 has been fixed as compensation payable to the owner of the aforesaid property. It is further stated that in the award notice, not only the name of Petitioner, but also the name of his vendor, erstwhile agent viz., City Estate Agencies are all mentioned mortgagees, whose mortgages have been discharged in the year 1971 itself.
It is further submitted that Petitioner has not received any notice at any stage of Land Acquisition Proceedings till passing award. It is further said that there is no affixture of notice on the property in regard to acquisition. Therefore, Petitioner has no knowledge of acquisition proceedings of property. The acquisition proceedings is therefore one without jurisdiction and the award No. 5 of 1986 passed by second Respondent is therefore void.
Petitioner therefore seeks issuance of Writ of Certiorari calling for the records of land acquisition proceedings of second Respondent commencing from Section 4(1) Notification dated 26.4.1972 upto the passing of award No. 5 of 1986 dated 15.5.1986 and quash the same and pass such other orders as the court may deem fit and proper.
A detailed counter affidavit has been filed on behalf of the Special Deputy Collector, the second Respondent. It is stated therein that the Corporation of Madras wanted the land to be acquired for the purpose of widening the existing railway station road, Mambalam and Section 4(1) notice was issued on 24.1.1972. The notification was approved by the Government on 27.3.1972 and published in Tamil Nadu Gazettee on 26.4.1972. Enquiry u/s 5A of Land Acquisition Act was conducted by the Land Acquisition Officer on 17.6.1972 after due publication and service in the manner prescribed in the Act. At the time of enquiry u/s 5-A, interested persons of the properties notified for acquisition, submitted petitions objection to the acquisition. Objection petitions were submitted, to the Commissioner of Corporation of Madras. But the objections were rejected taking into consideration the public interest. Declaration u/s 6 of the Land Acquisition Act was sent to the Government for the total extent of 22 grounds and 2107 Sq.ft, through the erstwhile Board of Revenue, Madras in Madras District Collector''s proceedings dated 12.3.1974. In regard to notice to petition is concerned, notice under Sections 4(1) and 5-A was served by affixture on 28.5.1972. Notices intended for tenants were served on tenants on 28.5.1972 and 31.5.1972 and further the contents of the notice was given wide publicity in the locality by beat of Tom Tom by the Special Revenue Inspector on 29.5.1972. Another Copy of notice was sent to the Petitioner to his last known address i.e., Thiru Mohamed Ibrahim, C/o. Thiru Abdul Gani,152, Thiruvalluvar Road, Karaikkal by registered post acknowledgment due but it was returned and delivered by the postal authorities with the endorsement ''Left India''.
Award enquiry notices u/s 9(1) and 10 and 9(3) and 10 of the Land Acquisition Act were published in the manner prescribed in the Act. Award enquiry was posted on 14.10.1974. Since Petitioner has not given any address, the same was served by affixture on 28.9.1974. Petitioner''s agent was also attempted to be served i.e., City Estate Agencies, but the door was found locked on 28.9.1974. It is also said that one of the tenants of Petitioner one Abdul Khadir states that he has informed about the receipt of the award enquiry notice to the local agent of owner i.e., City Estate Agencies and City Estate Agencies themselves filed a petition. On 11.11.1974 addressed to Special Deputy Collector, Land Acquisition, preferring their claim on behalf of their owner and themselves. Another notice dated 18.1.1975 was also served on the agent, City Estate Agencies, requesting them to prefer claim within a fortnight, which was also acknowledged by it. Simultaneously a letter was also sent to the name of Petitioner, which was returned with endorsement ''Left India''. Later, one Hussain claiming himself as Brother-in-law of Petitioner and Power of Attorney of Petitioner sent a petition dated 7.3.1981 objecting to the acquisition on behalf of Petitioner and his widowed mother, his unmarried sister, etc. It is therefore notice of award u/s 12(2) of the land Acquisition Act was served on 29.10.1986.
It is therefore contendded that Petitioner was well aware of the entire acquisition proceedings and Respondent has taken all possible steps to see that the notice is served on Petitioner and in fact has been served on the agent, who has also put forward a claim before them. The Writ proceedings challenging the acquisition proceedings initiated, is therefore invalid.
We heard the counsel on both sides, Learned Counsel for Petitioner made following submissions.
Petitioner/Appellant, who is the land owner was kept in dark of entire acquisition proceedings and he came to know only few days before executing power of attorney about the acquisition proceedings and hence the proceedings are invaid.
Learned Government Pleader placed the entire file before this Court and argued that at each and every stage, attempt was made to serve notice on Petitioner and it could not be personally served because he is out of India. He has also not left any address. It is further argued that Petitioner cannot plead ignorance about acquisition proceedings when the very same tenants were served with notice under Land Acquisition Act, and when admittedly agent of Petitioner also filed claim as early as in 1974. Learned Government Pleader submitted that even according to Petitioner, his agent died only six years prior to the proceedings and in this casse notice has been served on the agent even in the year 1973-1974. It is also submitted that the agent has received various notices from the land Acquisition Officer. Apart from the same, Petitioner''s brother-in-law also filed a petition in 1981 questioning Land Acquisition proceedings. Therefore, Petitioner cannot plead ignorance after more than 14 years.
On perusing, the entire file, we find that the contention of learned Government Pleader is only to be accepted. Petitioner cannot simply plead ignorance. It is admitted by writ Petitioner himself that one Hanab was same time collecting rent on behalf of Petitioner and that agent was conducting City Estate Agencies. It could be seen from the file that notice was served on this agent who has also filed a claim before the Land Acquisition Officer in the year 1974. In the subsequent proceedings also we find that this agent has participated. After his death, one Hussain, brother in-law and power of attorney of Petitioner filed a petition on 7.3.1981 objecting the proceedings. That objection was taken on behalf of Petitioner, Petitioner''s mother, Petitioner''s unmarried sister and shop owners. It is clear from these proved facts that the present contention is only an after-thought and to delay the acquisition proceedings.
In the decision Star Wire (India) Ltd v. State of Haryana reported in 1996 (II) S.C.C.698, it is held thus,
...As regards laches in approaching the Court, this Court has been consistently taking the view starting from State of Madhya Pradesh Vs. Bhailal Bhai and Others, wherein a Constitution Bench had held that it is not either desirable or expedient to lay down rule of universal application but the unreasonable delay denies to the Petitioner the discretionary extraordinary remedy of Mandamus, Certiorari or any other relief. The same view was reiterated in a catena of decision viz, Rabindranath Bose and Others Vs. The Union of India (UOI) and Others, ;
State of Mysore and Others Vs. V.K. Kangan and Others, ;
Aflatoon and Others Vs. Lt. Governor of Delhi and Others, ;
Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, ;
State of Tamil Nadu v. L. Krishnar, (1996) 1 SCC 250 ;
Improvement Trust, Faridkot v. Jagjit Singh ;
State of Punjab and Ors. v. Hari Om Cooperative House Building Society Ltd., Amritsar ;
Market Committee, Hodal Vs. Krishan Murari and Others, ;
State of Haryana and others Vs. Dewan Singh and others, ;
Wherein this Court had held that the High Court was not justified in interfering with the acquisition proceedings. This Court in the latest judgment in Municipal Corporation of Greater Bombay Vs. The Industrial Development Investment Co. Pvt Ltd., and others, reviewed the entire case-law and held that the person who approached the Court belatedly will be told that laches close the gates of the Court from him to question the legality of the notification u/s 4(1), declaration u/s 6 and the award of the Collector u/s 11.
In a recent decision of Supreme Court reported in M/s. Larsen and Toubro Ltd. Vs. State of Gujarat and Others, , this point has been considered more elaborately. In para 21 of the Judgment, it is held thus,
This Court has repeatedly held that writ petition challenging the notifications issued under Sections 4 and 6 of the Act is not made within a reasonable time. This Court has said that the Petitioner cannot sit on the fence and allow the State to complete the acquisition proceedings on the basis that notification u/s 4 and the declaraation u/s 6 were valid and then to attack the notifications on the grounds which were available to him at the time when these were published as otherwise, it would be putting a premium on dilatory tactics. Writ Petition (SCA No. 5149 of 1989) is thus barred by lachhes as well.
It is further held in that case that the allegations of non-compliance of any particular statutory provision will have to be specifically pleaded giving all particulars and more allegations are not sufficient. In paragraph 10, the Honourable Supreme Court held thus,
...It is requirement of good pleading to give details, i.e., particulars as to why it is alleged that there is non-compliance with a statutory requirement. Ordinarily, no notice can be taken on such an allegation which is devoid of any particulars. No issues can be raised on a plea the foundation of which is lacking. Even where rule nisi is issued, it is not always for the department to justify its action when the Court finds that a plea has been advanced without any substance, though ordinarily the department may have to place its full cards before the Court. In the present case, however, we find that the State has more than justified its stand that there has been compliance not only with Rule 4 but with Rule 3 as well, though there was no challenge to Rule 3 and the averments regarding non-compliance with Rule 4 were sketchy and without any particulars whatsoever. The High Court was, therefore, not right in quashing the acquisition proceedings in SCA No. 1568 of 1987.
(Emphasis supplied)
It is argued by the learned Counsel for the Appellant that Section 4(1) notification started in the year 1972 and award was passed only in the year 1986. For the delay of 14 years, Petitioners cannot be made responsible and that will be a ground for quashing the acquisition proceedings. It is true that there is delay in acquisition proceedings. But, having gone through the file and also in view of the amended provisions of Section 23(1A) of Land Acquisition Act, we do not find that it will be proper on our part to quash the proceedings. We have taken the view for the reason that even now Petitioner has no case that acquisition is not in the public interest. Counsel for Petitioner/Appellant also admitted that he cannot challenge the purpose of acquisition. It has also come in evidence that not only Petitioner''s property, but properties belonging to other persons are also acquired and possession already taken and the road has also been widened to some extent. It could also be seen from the file that various applications are filed challenging the acquisition proceedings before this Court and the speed at which proceedings ought to have been completed could not be achieved. We cannot find that the acquiring authority alone is to be blamed, for the delay in passing the award. That apart, we feel that Section 23(1)A as incorporated by amendment (inserted by Act 68/1984), Petitioner is not entitled to have the proceedings quashed. The relevant portion of the Act reads thus,
(1A) In addition to the market value of the land, as above provided, the Court shall in ever) case award on amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of publication of the notification u/s 4, Sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.
Section 30 of the Act 68/1984, Transitional provisions also explain the scope of Section 23(1A), which read thus, "Section 33(l) - The provisions of Sub-section (1A) of Section 23 of the Principal Act, as inserted by Clause (a) of Section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to.
(a) every proceeding for the acquisition of any land under the Principal Act pending on the 30th day of April, 1982, (the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People), in which no award has been made by the Collector before that date;
Both these provisions read together make it clear that legislature wanted to see that the acquisition proceedings are completed and Court should not be allowed to quash the same if it otherwise compensated by money. By incorporating Section 23(1A), the legislature has made it clear that delay by itself may not be a ground to quash a proceeding if it satisfies Section 30, transitional provisions also.
Learned Single Judge has also taken note of the above fact and refused to exercise the discretion under Article 226 of the Constitution of India.
It is well settled that no one can come to court and invoke the extra ordinary original jurisdiction of Article 226 as of right. It is purely, discretionary remedy. While exercising discretion, learned Judge has taken into consideration the long delay in initiating proceedings; conduct of Appellant when he alleges that he is not aware of the acquisition proceedings, but in fact it is otherwise; and also his application u/s 18 of the Land Acquisition Act claiming enhancement of compensation and seeking reference; and also admitted fact that acquisition is for undisputed public purpose. Learned Counsel for Appellant submitted that his application for reference is made without prejudice to his claim to get the proceedings quashed and in fact, that has been filed only after writ petition was submitted to this Court. Even if we accept that contention, we do not find that taking into consideration that fact also, learned judge went wrong in refusing to exercise discretion.
In appeal against an order or judgment, in regard to exercising or non-exercising of discretionary remedy, the scope is very much limited. We need take only reliance in the decision reported in Uttar Pradesh Co-operative Federation Ltd. Vs. Sunder Brothers of Delhi, . In that case, trial Court refused to stay the proceedings u/s 34 of the Arbitration Act, 1940. Stay of the suit is not purely a matter of discretion and the question was that in appeal, whether the disertion exercised by the trial Court is liable to be interfered with? In paragraph 8 of the Judgment, their Lordships held thus.
It is well established that where the discretion vested in the Court u/s 34 of the Indian Arbitration Act has been exercised by the lower Court the appellate Court should be slow to interfere with the exercise of that discretion. In dealing with the matter raised before it at the appellate stage the appellate Court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court''s exercise of discretion. As is often said, it is ordinarily not open to the appellate Court to substitute its own judge; but if it appears to the appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the appellate Court to interfere with the trial Court''s exercise of discretion. This principle is well established; but, as has been observed by Viscount Simon L.C., in Charles Osenton and Co. v. Johnston 1942 AC 130 at p.138;
The law as to the reversal by a Court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.
In 1949 (1) All ER 256 (Stephang Bourough Council v. Joses) Lord Goddard, CJ., had to deal with the appellate powers conferred on Metropolitan Magistrate in the matter of the grant, refusal, renewal, revocation on variation of street trading licenses by a borough council. His Lordship said thus,
There is given here an unrestricted right of appeal, and, if there is an unrestricted right of appeal, it is for the Court of appeal, in this case the Metropolitan Magistrate, to substitute its opinion for the opinion of the borough council. That does not mean to say that the Court of appeal ought not to pay great attention to the fact that the duly constituted and elected local authority have come to an opinion on the matter and ought not lightly to reverse their opinion. It is constantly said (although I am not sure that it is always sufficiently remembered) that the function of a Court of appeal is to exercise its powers where it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right.
(Emphasis supplied)
If we go by the above dictum, even though the appellate Court may have jurisdiction to reappreciate the evidence and come to a different conclusion, that power is to be exercised only if it is found that the original authority was wrong and not case it was not right. If this is the case even before statutory appellate authority, the position will be still worse when the appeal is taken against the discretionary orders of a Learned Judge of this Court. We find that the learned Judge has passed the order and exercised discretion properly and therefore there is no scope for either holding that the judgment is wrong or there is scope for finding that the decision is not right.
For the above reasons, the W.A.549 of 1997 is dismissed.
In the result, both W.P.13809, 13318 of 1986 and W.A.548 and 549 of 1997 are all dismissed. There will be no order as to cost. Consequently, connected miscellaneous petitions are also dismissed.