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Judgment
T.S. Sivagnanam, J.—1. In all these Writ Petitions, the prayer sought for is identical wherein the petitioners have prayed for issuance of Writ of Certiorari, to quash the award passed by the second respondent in award No. 5 of 2009, dated 16.11.2009 on the ground that the entire land acquisition proceedings have lapsed for not adhering to Section 11A of the Land Acquisition Act, 1894 (Act).
The first Writ Petition was filed in 2010 and the other Writ Petitions are filed in 2015 and the only distinction in the Writ Petitions filed during 2015 is that the petitioners claimed that the land acquisition proceedings are lapsed for not adhering to Section 11A as well as Section 17(3A) of the Act. For the purpose of disposal of these cases, W.P. No. 7070 of 2010, is taken as the lead case and it would suffice to refer to the facts stated therein at the first instance.
The Government of Puducherry proposed to form a new link road south of Puducherry-Villupuram railway line bye-passing Arumparthapuram with a view to ease traffic congestion. The total length of the bye-pass road is 4.45 kilometers with the width of 22 meters. The proposed bye-pass road starts from Natesan Nagar at the junction of NH-45A and joins a Villupuram arm of National Highways 45A. The total extent of lands which was proposed to be acquired for formation of the bye-pass road is 10.41.03 Hectares, which includes wet land to an extent of 08.64.18 hectares and the lands fall in four Revenue villages namely, Odiampet, Reddiarpalayam, Kurumbapet and Olandai. The Government of Puducherry invoked the urgency provision under section 17 of the Act vide proceedings dated 26.02.2004, based on which, approval which was granted and requisition was made for acquiring the lands. Based on such request made to the Deputy Collector (Revenue) - Cum Land Acquisition Officer of the concerned area Notification under Section 4(1) of the Act was issued on 27.12.2005 and the last of such publication being made on 30.09.2006. The declaration under Section 6(1) of the Act was issued vide notification dated 17.07.2006 and the last of such publication was made on 01.12.2006. The award was passed on 16.11.2009. The petitioners challenge the acquisition proceedings as having lapsed, as the award was not passed within two years from the date of publication of the declaration as required under Section 11A of the Act. Further, it is seen that though in the prayer sought for in W.P. No. 7070 of 2010, the petitioner sought to quash the acquisition on the ground that award was not passed within two years from the date of publication of the declaration, in the grounds raised in the Writ Petition, the petitioner contended that the respondents did not take possession of the lands even after three years after declaring the land acquisition proceedings after invoking the power under Section 17, and the respondent did not offer the payment of 80% of the compensation as mandated under Section 17(3A) of the Act. Thus, the acquisition is challenged on these two grounds.
The learned counsel appearing for the petitioners would fairly admit that the decision of the Hon''ble Supreme Court in the case of Satendra Prasad Jain & Ors., v. State of U.P., & Ors., reported in , (1993) 4 SCC 369, does not support the case of the petitioners wherein the Hon''ble Supreme Court held that Section 11A can have no application to the cases of acquisition under Section 17 of the Act because the lands have already vested in the Government and there is no provision in the Act by which the lands statutorily vested in the Government can revert to the owner. While accepting this position, the learned counsel appearing for the petitioner referred to the decision of the Hon''ble Supreme Court in the case of Delhi Airtech Services (P) Ltd., v. State of U.P., reported in , (2011) 9 SCC 354, wherein a two Judge Bench of the Hon''ble Supreme Court took divergent views and the matter was directed to be placed before the Hon''ble Chief Justice of India for reference to a larger Bench to resolve the divergent views expressed by both the Hon''ble Judges and to answer the question of law framed.
It was argued by the learned Additional Government Pleader appearing for the respondents that the reference is yet to be answered and therefore, the law which holds the field in the case of Satendra Prasad Jain & Ors., v. State of U.P., & Ors., (supra), is applicable and by applying the law laid down in the said decision, the Writ petitions are liable to be dismissed.
Countering the said submission, the learned counsel appearing for the petitioner submitted that in the light of the two recent decisions of the Hon''ble Supreme Court, the petitioner has an excellent case on merits. These decisions being Laxmi Devi v. State of Bihar & Ors., reported in , (2015) 10 SCC 241, and Soorajmull Nagarmull v. State of Bihar & Ors., reported in , (2015) 10 SCC 270. Therefore, it has to be seen as to whether the decision in the case of Laxmi Devi v. State of Bihar & Ors., (supra) and Soorajmull Nagarmull v. State of Bihar & Ors., (supra) would cover the cases on hand.
It has to be pointed out that the Hon''ble Supreme Court in the case of Laxmi Devi v. State of Bihar & Ors., (supra) took note of the decision in the case of Delhi Airtech Services (P) Ltd., v. State of U.P., (supra), were divergent views were expressed as well as the decision in the case of Banda Development Authority, Banda v. Motilal Agarwal & Ors., reported in , (2011) 5 SCC 394, on which heavy reliance was placed by the learned Additional Government Pleader. Thus, the issue which falls for consideration in these cases is as to whether the judgment in the case of Laxmi Devi v. State of Bihar & Ors., (supra) and Soorajmull Nagarmull v. State of Bihar & Ors., (supra) would cover the grounds raised in the present Writ Petitions.
In Laxmi Devi v. State of Bihar & Ors., (supra), the plea raised by the appellants was that the land should revert to them under Section 11A of the Act, since an award under Section 11 has not been made despite the passage of almost three decades from the date of the subject notification. Noting the decision in the decision of Satendra Prasad Jain & Ors., v. State of U.P., & Ors., (supra), by the three Judge Bench of the Hon''ble Supreme Court, it was pointed out that in the said decision, the Court was concerned only with the issue of the land being returned by the State to the erstwhile owner and it does not go so far as to limit or restrict the rights of landowners to fair compensation for their expropriated, as that is a constitutional right which cannot be nullified, neutralised or diluted. The observations made by the Hon''ble Supreme Court in paragraph 16 of the judgment in Satendra Prasad Jain & Ors., v. State of U.P., & Ors., (supra), was referred to wherein it was observed that Section 11A of the Act cannot be so considered as to leave the Government holding title to the land without the obligation to determine compensation, and make an award and pay to the owner the difference between the amount of the award and the amount of 80% of the estimated compensation. Further, in the case of Satendra Prasad Jain & Ors., v. State of U.P., & Ors., (supra), and in the case of Lt., Governor of H.P., v. Avinash Sharma, reported in , (1970) 2 SCC 149, it was pointed out that in both these judgments, the Government''s attempt was to misuse its own omissions to achieve its own oblique purposes and in that context the Hon''ble Supreme Court declined to accede to the pleas of the Government and the Court poignantly repelled the State''s attempt to nullify the acquisition on the predication of its non-compliance with Sections 16 and 17(3-A) of the Act. Further it was pointed out that the judicial intent was not to cause any loss to landowners, but to protect them. Noting the pernicious practice that was becoming rampant, that is to make partial compliance with the statute and to follow the acquisition procedure in a piecemeal manner and then to argue that its own lapses rendered its acquisition illegal, was roundly repulsed. It was further held that this strictly constitutes obiter and it is appropriate to clarify that where the landowners do not assail the acquisition, it may be open to them to seek a mandamus for payment to them, after a reasonable period, of the remaining compensation, which will thereupon metamorphose from a mere estimation to the actual compensation for the expropriation. Further, the Hon''ble Supreme Court observed that the decision in Satendra Prasad Jain & Ors., v. State of U.P., & Ors., (supra), has been interpreted more broadly in the past and did not examine the rationes decidendi, their innate contradictions, their intentions or their consequences at any length and for this reason, the Hon''ble Supreme Court re-visited the curial concept of ratio decidendi. Thus, it was held that the appellants therein (Laxmi Devi v. State of Bihar & Ors.,) are being denied just and fair compensation for their land proceedings, which commenced in 1987 despite directions of the High Court passed in 1988 to pass an award within four months. Thus, it was held that if Satendra Prasad Jain & Ors., v. State of U.P., & Ors., (supra), is interpreted to mean that Section 11A will not apply to any acquisition under the urgency provisions, landowners such as the appellants therein will have no protection, even if they are not paid full compensation for their lands for decades and this cannot be in keeping with the legislative intent behind this section. The decision in the case of Laxmi Devi, (supra), was followed in the case of Soorajmull Nagarmull v. State of Bihar & Ors., (supra), and it was held that the respondents therein have denied the appellants just and fair compensation as envisaged and postulated in the Land Acquisition Act for its lands from which it was dispossessed well over three decades ago. It was further clarified that the ratio in the case of Satendra Prasad Jain & Ors., v. State of U.P., & Ors., (supra), confined to the proposition that the errant respondent State is precluded from endeavouring to have the acquisition set aside for its own failure to carry out compliance with Section 11A of the Act and that once possession have been taken by the State under Section 17 of the Act, it is no longer open to the State to relinquish or return the land to the legal entity who had been dispossessed from it. Accordingly, the Hon''ble Supreme Court refrained from passing any orders or directions interfering with the possession of the respondent State over the subject land.
At this stage, it would be beneficial to refer to the operative portion of the decision of the Hon''ble Supreme Court in the case of Laxmi Devi, (supra):--
"29. The scenario before us depicts the carelessness and the callousness of the State, quite different from the situation in Satendra Prasad Jain and Avinash Sharma. The Appellants herein are being denied just and fair compensation for their land in proceedings which commenced in 1987, despite the directions of the High Court passed as early as in 1988 to pass an award within four months. The raison d''etre behind the introduction of Section 11A was for the landowners to have a remedy in the event of an award not being passed expeditiously. If Satendra Prasad Jain is interpreted to mean that Section 11A will not apply to any acquisition under the urgency provisions, landowners such as the Appellants before us will have no protection, even if they are not paid full compensation for their land for decades. This cannot be in keeping with the legislative intent behind this Section. Furthermore, keeping empirical evidence in sight, we make bold to opine that circumstances require this Court to reconsider its view that even if the stated public interest or cause has ceased to exist, any other cause can substitute it, especially where the urgency provisions have been invoked."
The learned counsel appearing for the petitioner also placed reliance on the decision of the Hon''ble Supreme Court in the case of Laxman Pandya & Ors., v. State of U.P., & Ors., reported in , 2011 (6) SCALE 468, wherein the Hon''ble Supreme Court held that the acquisition proceedings will be deemed to have lapsed insofar as the appellants therein due to non-compliance of the mandate of Section 11A of the Act. To the same effect, reliance was also placed on the decision of the Hon''ble Supreme Court in the case of R. Indira Saratchandra v. State of Tamil Nadu & Ors., reported in , 2011 (2) SCALE 72.
The learned Additional Government Pleader placed heavy reliance on the decision in the case of Banda Development Authority, Banda v. Moti Lal Agarwal & Ors., reported in , (2011) 5 SCC 394, and submitted that the decision was rendered following the Satendra Prasad Jain & Ors., v. State of U.P., & Ors., (supra), and since the decision in the case of Delhi Airtech Services Pvt., Ltd., & Anr., v. State of U.P., & Anr., (supra), has been referred for consideration of the Larger Bench of the Hon''ble Supreme Court, till the issue is decided, the field is covered by the decision in the case of Satendra Prasad Jain & Ors., v. State of U.P., & Ors., (supra). Further, it is submitted that the Hon''ble Supreme Court in the case of Laxmi Devi, (supra), was convinced to issue such a direction since for three decades the award was not passed in spite of direction issued by the Court.
Further, the learned counsel for the respondent elaborately referred to the project and submitted that the project is in two phases, namely, on the northern side and southern side and the road on the northern side to a length of about 2.25 km has already been laid and after the interim orders in W.P. No. 7070 of 2010 was vacated by this Court, the preliminary works for the formation of the bye-pass road on the southern side has commenced and only nine land owners have approached the Court out of 62 landowners, whose lands hand been acquired. Referring to the counter affidavit filed in W.P. No. 36586 of 2015, it is submitted that after the interim order was vacated by this Court on 21.09.2015, the Land Acquisition Officer issued notices under Section 12(2) of the Act to take possession and fixing the date for taking over possession on 28.09.2015 and accordingly, the lands were taken possession on the said date and handed over to the requisitioning body namely, National Highways Division, Public Works Department, Puducherry, who have started the ground work for laying the road. Further, it is submitted that the Land Acquisition Officer have deposited the compensation determined in the impugned award before the Civil Court and the matter has been referred to the District Court under Section 30 of the Act to decide the rightful ownership and apportionment and at that stage, the second set of Writ Petitions were filed during October 2015 and these Writ Petitions are frivolous and are liable to be dismissed.
As pointed out earlier, the first Writ Petition being W.P. No. 7070 of 2010, was filed by nine petitioners and the Writ Petition was entertained and an interim order was granted. Subsequently, the respondent sought for modification of the interim order stating that the notification covers the properties of 62 landowners and whereas nine landowners alone have approached the Court and the remaining 53 owners have not challenged the acquisition proceedings before this Court or any where and owing to the interim stay of the notification/proceedings in its entirety covering the properties of all 62 landowners, possession could not be taken. Taking into consideration, the said submission and that the purpose for acquisition is for farming a bye-pass road, it was thought fit to restrict the interim order only to the properties of the nine landowners and accordingly, it was held that there can be no interim order in respect of the remaining 53 landowners, there will be no prohibition for the respondents to go ahead with the project. Thus, the Writ Petitions which were filed during October 2015, i.e., after about one month after the interim order granted in W.P. No. 7070 of 2010, was modified on 25.10.2015, are liable to be summarily rejected on the ground of unexplained delay and laches. The petitioners who came before this Court in 2015 were very well aware that nine landowners had approached this Court in 2010 itself and taking advantage of the fact that there was a stay of the entire proceedings, these petitioners appear to have been "sitting on fence" and watching the proceedings and it is too late for them to now approach this Court contending that they are also similarly placed as that of the nine landowners, the petitioners in W.P. No. 7070 of 2010. Therefore, this Court has no hesitation to dismiss the Writ Petition, which have been filed beyond October and November 2015 and latest being filed during 2016 and accordingly, W.P. No. 36568, 36713 & 38428 of 2015, 18187 of 2016, are dismissed.
With regard to W.P. No. 7070 of 2010, in the preceding paragraphs, the factual and legal position have been set out, for the reasons already mentioned the decision in the case of Laxmi Devi, (supra), would squarely be applicable to the facts and circumstances of the case. Moreso, when the Land Acquisition Officer, the second respondent in his counter affidavit had candidly admitted that the possession could not be taken. That apart, 80% of the compensation is required to be paid, which is mandatory in terms of the statutory provisions. As could be seen from the proceedings of the award enquiry, dated 12.12.2008, funds were not provided on the date of passing the award as the proceedings recorded that necessary funds will be provided by the Public Works Department. Further, while dealing the issue as to whether interest has to be paid, it has been stated that as the lands have not yet been taken over possession, there is no need to pay interest. Further, it is a matter of record that the requisitioning body namely Public Works Department had placed the funds at the disposal of the Land Acquisition Officer on 10.06.2009, to the tune of Rs. 70,00,000/-, and further a sum of Rs. 73,83,588/- on 31.07.2009 and it is admitted that the said amount is not 80% of the compensation, but close to 80%. In my view, when the statute prescribes the quantum of compensation payable to be at 80%, there can be no approximation of the said amount and it shall be in accordance with the statute. Thus, the acquisition proceedings have to be held to have been lapsed by applying the law laid down in the case of Laxmi Devi, (supra).
Having held so, it has to be seen as to whether the land should be restored to the landowners especially when the project is of public importance and an extent of 2.25 kms of the bye-pass road has already been formed and after the interim order was vacated, the possession of the lands have been taken over in respect of the 53 landowners and the same has been handed over to the Highways Department and preparatory works have already commenced. Thus, balancing the interest of the nine landowners, petitioners in W.P. No. 7070 of 2010, and interest of the public, this Court is of the view that though the acquisition proceedings is said to have been lapsed on technical grounds, possession should be taken over by the respondents to enable formation of the road. However, this does not mean that the landowners'' interest should be given a go-bye inspite of having succeeded in the Writ Petition. During the course of arguments, submission was made that the landowners are interested in getting fair compensation and it appears that no fruitful results came out of the discussion between the landowners and the official respondents.
Be that as it may, having held that the notification insofar as it relates to the nine petitioners in W.P. No. 7070 of 2010, is lapsed, liberty is granted to the respondents to issue fresh notification in respect of those lands and in the interregnum, the petitioners are directed to surrender possession of the land and their claim for compensation shall be computed based on the date on which the fresh notification as directed will be issued.
In the result, Writ Petition in W.P. No. 7070 of 2010, is partly allowed and the acquisition proceedings in respect of the nine petitioners is held to have been lapsed with direction to the respondents to issue fresh notification for acquisition of the lands, within a period of two weeks from the date of receipt of a copy of this order with a further direction to the petitioners to surrender the possession of the lands to the respondents so as to enable the project which is of public importance to proceed further.
For the reasons stated above, W.P. No. 7070 of 2010, is partly allowed with direction as aforesaid and W.P. Nos. 36731, 36586, 38427 of 2015 and 1817 of 2016 are dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.