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Chennai Ekambareswarar Devastanam. Vs. Collector and Land Acquisition Officer, Madras - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberWrit Petn. Nos. 906 and 907 of 1959
Judge
Reported inAIR1966Mad385
ActsLand Acquisition Act - Sections 4(1), 6, 9, 9(3), 10, 11, 12, 12(2), 15(2), 17(1), 18, 18(2), 45 and 53
AppellantChennai Ekambareswarar Devastanam.
RespondentCollector and Land Acquisition Officer, Madras
Cases ReferredVenkateswarlu v. State of Madras
Excerpt:
.....15 (2), 17 (1), 18, 18 (2), 45 and 53 of land acquisition act - whether writ should be issue to land acquisition officer to make reference under section 18 to civil court - in view of precedent delay by itself does not disentitle application to any relief - but if delay caused by reasons which could be satisfactorily and properly explained then this court would not refuse remedy to petitioner - held, land acquisition officer directed to make reference under section 18 to civil court having jurisdiction. - - it is claimed that the land acquisition officer, who must have been aware of such valuation failed in the performance of his duty in fixing the proper value of the land acquired. it was also alleged that the award had failed to take into account and value certain amenities..........in these two petitions, prays for the issue of a writ of mandamus to direct the collector and land acquisition officer of madras to hold a fresh enquiry under s. 11 of the land acquisition act in regard to the fixation of the compensation for the lands of the petitioner devastanam which have been acquired. in the alternative, it is prayed that a writ may issue to direct the land acquisition officer to make a reference under s. 18 of the land acquisition act. the facts are briefly as hereunder.the petitioner owns land r. s. 1/1 of ayanavaram of an extent of 28 acres 18 cents. the notification under s. 4(1) of the land acquisition act was made on 15-9-1954, proposing to acquire the lands abovementioned. it was in due course followed by the declaration under s. 6 of the act. this was.....
Judgment:
ORDER

(1) Sri Ekambareswarar Devastanam by its trustees, the petitioner in these two petitions, prays for the issue of a writ of Mandamus to direct the Collector and Land Acquisition Officer of Madras to hold a fresh enquiry under S. 11 of the Land Acquisition Act in regard to the fixation of the compensation for the lands of the petitioner devastanam which have been acquired. In the alternative, it is prayed that a writ may issue to direct the Land Acquisition Officer to make a reference under S. 18 of the Land Acquisition Act. The facts are briefly as hereunder.

The petitioner owns land R. S. 1/1 of Ayanavaram of an extent of 28 acres 18 cents. The notification under S. 4(1) of the Land Acquisition Act was made on 15-9-1954, proposing to acquire the lands abovementioned. It was in due course followed by the declaration under S. 6 of the Act. This was published in the Fort St. George Gazette on 22-9-1954. Along with this notification, the emergency provisions of the Land Acquisition Act were invoked and possession of the lands was taken under S. 17(1) of the Act. It is stated by the petitioner that notice under Ss. 9 and 10 of the Act were issued to the then trustees of the devastanam. The trustees responded to that notice and claimed compensation at the rate of Rs. 250 per ground. An award No. 5/1955 was in due course passed by the Land Acquisition Officer awarding a compensation of Rs. 1,31,407-7-1, accepting the rate of Rs. 250 per ground.

When the present trustees took charge, they became aware that the claim made by the then trustees was grossly inadequate and thought that those trustees had acted with such gross negligence that the institution has been put to considerable loss. It is alleged in the petition that the market value of the lands prevailing at the date of the acquisition was in excess of Rs. 1000 per ground and that in other land acquisition cases lands near the petitioner's lands were valued by the court on a reference to it at Rs. 1100 per ground. It is claimed that the Land Acquisition Officer, who must have been aware of such valuation failed in the performance of his duty in fixing the proper value of the land acquired.

(2) The further contentions of the petitioner are that the Land Acquisition Officer gave no notice to the petitioners of the passing of the award as required by Sec. 12(2) of the Act. The present trustees on coming to know of the Land acquisition proceedings put in petition to the Land Acquisition Officer requesting the claim of Rs. 250 per ground made by the previous trustees might be amended as Rs. 1250 per ground. It was also alleged that the award had failed to take into account and value certain amenities available on the property, such as a tank and well. But, by the date this request was made, the award has been passed by the Land Acquisition Officer so that officer could not take note of these requests. Thereafter, the devastanam applied to the collector to make a reference under S. 18 of the Land Acquisition Act to the court. The Collector and Land Acquisition Officer refused to make the reference on the ground that the application was not within time.

(3) It is accordingly contended by the petitioner that, firstly, the Land Acquisition Officer had failed to perform the statutory duties cast upon him of making a proper enquiry as to the valuation of the properties; that though he was aware that the properties situated in the neighbourhood had been valued, at a considerably high figure, he ignored these facts. Secondly, it is claimed that the refusal of the Land Acquisition Officer to make a reference under S. 18 of the Act is based upon an erroneous interpretation of S. 12 of the Act, and that since this application was made within six months of the date of the Collector's award, the Land Acquisition Officer was bound under the statute to make the reference.

(4) On behalf of the respondent Collector and Land Acquisition Officer, a counter affidavit has been filed. It is stated that notices under S. 9(3) and S. 10 of the Act were served on the managing trustees of the devastanam on 30-9-1954. Thereafter, the trustees put in a representation in writing claiming Rs. 250 per ground as compensation. It is urged that the present trustees had full knowledge of the acquisition proceedings though they took charge sometime in January 1955. In due course, the award was passed by the Collector on 9-5-1955, the compensation being awarded at the rate claimed by the then trustees. It was specifically alleged in the counter affidavit that the notice of the award under S. 12(2) of the Act was served on the petitioner devastanam on 23-7-1955. On 19-8-1955; two of the trustees applied for amendment of their statement of claim. They were informed that the award has already been passed and compensation has also been deposited in the court. Thereafter, the managing trustee asked by a letter dated 5-11-1955 for a fresh enquiry and review of the award and for a reference in the civil court under S. 18 of the Act. The Land Acquisition Officer informed the petitioner that no question of a fresh enquiry or review arose and further that the application for making a reference under S. 18 was also belated.

(5) It is further urged by the respondent that the writ petitions are liable to be dismissed in limine on the ground that they have been filed after inordinate delay.

(6) In a reply affidavit filed by the petitioner, the managing trustee of the devastanam averred that it was only in September 1955, that the devastanam became aware that an award had been made. It was specifically denied that any notice of the passing of the award under S. 12(2) of the Act was served on the petitioner devastanam on 23-7-1955, as alleged on the counter affidavit of the respondent. It is pointed out that the counter affidavit does not disclose the person on whom such service was effected, though the Land Acquisition Officer was fully aware of the names and addresses of all the trustees of the institution. In explanation of the delay in filing of the writ petitions, it was stated in the reply affidavit that after the refusal of the collector to make a reference under S. 18 of the Act, the trustees had to move the superior authorities, the Commissioner of the Hindu Religious and Charitable Endowments, and obtain his directions in the matter. It was not till 1958 that the departmental sanction was obtained for instituting these proceedings. Since the devastanam is under the control of a hierarchy of officers of a department of Government, certain prescribed procedures had to be gone through before the trustees could take steps to move in the matter. It was claimed for these reasons that the delay should not disentitle the petitioner to the relief which it prays for.

(7) The only point that I propose to consider is whether a writ should issue to the Land Acquisition Officer to make a reference under s. 18 of the Act to the civil court. In so far as the other relief of directing a fresh enquiry under S. 11 of the Act is concerned, it has not been established that the procedure prescribed by law preparatory to the passing of the award was not followed. It not denied by the petitioner that all the notices that a person interested was entitled to under the provisions of the Act upto the stage of making of the award were in fact issued and served upon the petitioner. The petitioner's further claim that the then trustees were guilty of gross negligence in making a claim only for compensation at the very low figure of Rs. 250 per ground, does not arise for consideration here. In these circumstances, there can be no question of directing a fresh enquiry. The only manner in which the award passed by the Collector may be varied is by making a reference to the court. It is only in cases when the proceedings prior to the making of the award are tainted with any invalidity that the petitioner can claim that since the procedure was not in accordance with the law, it should be treated as null and void and a fresh enquiry should be ordered. That admittedly is not the case here, and for these reasons, I propose to confine myself only to the question whether the application for making a reference to the court under S. 18 of the Act should or should not have been complied with by the collector.

(8) Under S. 12 of the Act, the award, when it is made shall be filed in the collector's office and 'shall, except as hereinafter provided, be a final and conclusive evidence as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the area and value of the land and the apportionment of the compensation among the persons interested.....' The matter upon which the award is declared to be final and conclusive can however be the subject matter of a reference to court under S. 18. Subject, therefore, to any decision of court on reference under S. 18, these matters are final and conclusive. Sub-s. 2 of S. 12 reads:-

'The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.'

A mandatory duty is cast upon the collector to give notice to the persons interested. It is admitted by the respondent that the devastanam through its trustees was not present either personally or by representatives on the date when the award was made. It was therefore incumbent upon the collector to give notice of the award and it is the contention of the respondent that such a notice was served 'on the petitioner devastanam on 23-7-1955'. This averment of the respondent has been disputed by the petitioner in the reply affidavit. The question accordingly arises as to the manner in which the petitioner devastanam was served with notice of the award under S. 12(2). It is necessary to examine this matter for the reason that under S. 18(2) of the Act, an application for making a reference shall be made within six weeks from the date of the Collector's award if the person making the application was present or was represented before the collector at the time when the award was made. In other cases, that is to say, where the person interested was neither present nor represented before the collector at the time of the making of the award, the application for making a reference under S. 18 of the Act has to be made within six weeks of the receipt of the notice from the Collector under S. 12(2) of the Act or within six months from the date of the Collector's award, whichever period shall first expire. It is this latter part of S. 18(2) of the Act, that is relevant for the purpose of this case. It has been the contention of the respondent that since a notice was served on the petitioner devastanam on 23-7-1955, the application for reference which was made on 5-11-1955 is beyond the period of six weeks referred to.

(9) During the course of the arguments, the learned Additional Government Pleader produced the records of the acquisition proceedings and pointed out that a notice issued under S. 12(2) of the Act is purported to have been served upon some person representing the devastanam who has initiated it and the seal of the office of the devastanam was also affixed to the copy of the notice. It was the specific case of the learned Additional Government Pleader that it was the then managing trustee named V.N. Sadasiva Chetti who had been so served. As it appears to me that the initials found upon the notice under S. 12(2) did not correspond with the admitted signature of the then managing trustee Sadasiva Chetti which is also found in the records, the learned Additional Government Pleader was directed to produce the managing trustee before the court and to establish that the notice had in fact been served upon that managing trustee. On the adjourned date of hearing, the learned Additional Government Pleader submitted that he was mistaken in the statement he made on the earlier occasion and that it appeared that the notice was served upon some clerk of the petitioner devastanam. It was also observed on an examination of the records that on each and every occasion when any notice was sought to be issued to the devastanam the copy of the notice on the file showed that the persons sought to be served and in fact served on such occasions were the trustees of the institution. Even the notice under S. 12(2) of the Act was addressed to these trustees, though the respondent Land Acquisition Officer does not appear to have taken care to see that the notice was in fact served upon one or more of the trustees. It is accordingly the contention of the petitioner devastanam through its present trustees that they had no knowledge of the passing of the award as on the date alleged and further that the service of the notice on a clerk of the devastanam is not notice in law as required by S. 12(2).

(10) Learned counsel for the petitioner also refers to S. 45 of the Land Acquisition Act, which specifically provides that whenever it may be practicable, service of the notice shall be made on the person therein named. It is not pretended that the trustees to whom the notice was addressed could not be found and that alternative modes of service had therefore to be resorted to. Even so, it is not one of the alternative modes of service in S. 45(3) of the Act that was adopted in the present case. It accordingly seems to me that the service of the notice upon the clerk of the devastanam was not in conformity with the requirements of S. 12(2) of the Act.

(11) In Harishchandra v. Dy. Land Acquisition Officer, : [1962]1SCR676 their Lordships of the Supreme Court had occasion to consider the second part of S. 15(2). They observed that it would be unreasonable to construe the words 'from the date of the collector's award' used in S. 18 of the Act in a literal or mechanical way. That was a case where though a person interested has filed his claim to compensation for the land acquired in accordance with S. 9(2) of the Act, no notice of the award was given to him as required by S. 12(2). He claimed to have become aware of the passing of the award nearly two years later and thereafter filed an application under Sec. 18 praying for a reference to court. On the refusal of the Land Acquisition Officer he moved the High Court by a petition of writ. That petition was originally allowed but on appeal, a Division Bench of the Allahabad High Court held otherwise and took the view that the application under S. 18 was barred by time. That was how the matter came before the Supreme Court and their Lord ships observed:

'The question which arises for our consideration is whether this literal and mechanical way of construing the relevant clause is justified in law. It is obvious that the effect of this construction is that if a person does not know about the making of the award and is himself not to blame for not knowing about the award, his right to make an application under S. 18 may in many cases be rendered ineffective. We must therefore, enquiry whether the relevant provision is capable of construction for which the appellant contends, and that naturally raises the question as to what is the meaning of the expression 'the date of the Collector's award'.

They then refer to Sec. 12(2) of the Act and say:

'It is because communication of the order is regarded by the legislature as necessary that S. 12(2) has imposed an obligation on the Collector, and if the relevant clause in the proviso is read in the light of this statutory requirement, it tends to show that the literal and mechanical construction of the said clause would be wholly inappropriate. It would indeed be a very curious result that the failure of the Collector to discharge his obligation under S. 12(2) should directly tend to seek ineffective the right of a party to make an application under S. 18 this result could not possibly have been intended by the legislature'.

In Papamma Rao Garu v. Revenue Divisional Officer, Guntur, 33 Mad LJ 472: (AIR 1918 Mad 589), a Bench of this Court had to consider the question of service of a notice under Sec. 12(2) of the Act. In that case, the notice of award passed by the Collector was served on the manager of the office of the receiver of an estate. The learned Judges took the view that service on the manager of the office and not upon the receiver was not service as contemplated by S. 45 of the Land Acquisition Act. They also proceeded to consider whether S. 53 of the Act could be relied upon to cure the defect in the mode of service. They did not decide whether the provisions of the Civil Procedure Code apply to proceedings under the Land Acquisition Act, but assuming that they could apply, they held the requirements of the Civil Procedure Code, had also not been complied with. But the real ratio of this decision is that where a notice was required to be served under S. 12(2) of the Act, and the mode of service is laid down in the Land Acquisition Act in S. 45, failure to comply with these provisions strictly would render the service invalid.

(12) For these reasons and in view of the admission of the learned Additional Government Pleader that the service was only upon the clerk and not upon the person interested within the meaning of the Act, it follows that the application made by the petitioner devastanam for making a reference is not barred by time.

(13) I am not prepared to accept the further contention of the respondent that the delay in moving this court should disentitle the party to the relief prayed for. It is true that the issue of a writ is a matter which lies entirely within the discretion of this court and inordinate and unexplained delay in reaching this court for the relief may be taken notice of by this court in refusing to exercise its discretion in favour of the party. But the delay has been satisfactorily explained. The petitioner is a devastanam acting through its trustees and is under the control of a department of the Government without whose sanction the devastanam could not engage itself in litigation or in proceedings in court however much in the interests of the institution such proceedings might be. This is not a case where it would be proper to deny relief asked for notwithstanding that there was some delay. As observed by Govinda Menon J. in Venkateswarlu v. State of Madras, : (1954)ILLJ474Mad .

'Delay by itself should not disentitle the application to any relief. But if the delay was caused by reasons which could be satisfactorily and properly explained, then this court would not refuse the remedy to the petitioner'.

(14) In the result, a writ of mandamus will issue directing the Land Acquisition Officer to make a reference under S. 18 of the Act to the civil court having jurisdiction. There will be no order as to costs.

KI/SG/D.V.C.

(15) Petition allowed.


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