Madras High Court
S.Devarasu vs The District Collector on 26 February, 2018
Author: N.Seshasayee
Bench: N.Seshasayee
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.02.2018
CORAM: THE HONOURABLE Mr.JUSTICE N.SESHASAYEE
W.P.No.43007 of 2016
S.Devarasu ... Petitioner
-Vs-
1.The District Collector
Villianur District
Pondicherry.
2.The Deputy Collector (Revenue)-
South- cum-Land Acquisition Officer
Pondicherry.
3.The Executive Engineer
National Highways Department
Public Works Department
Pondicherry.
4.The Government of Pondicherry
Pondicherry. ... Respondents
Prayer :- Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records in proceedings No.616/DCRS/LA/U/04 dated 03.10.2016 on the file of the 2nd respondent and quash the same as illegal, incompetent and further direct the respondents to re-fix the compensation in respect of property in R.S.No.180/4B in Kurumbapet Revenue Village.
For Petitioner : Mr.V.Raghavachari
For Respondents : Mr.J.Kumaran
Government Advocate (Pondy)
ORDER
1.1 The petitioner claims that he owned a piece of property in R.S.No.184/4B of Kurumbapet Village, Pondicherry. On 30-08-2006, he purchased the same from one Pakkri and Soundarambal. Exactly a month after the said purchase, the Government of Puducherry has issued a notification under Section 4(1) r/w Section 17 of the Land Acquisition Act 1894 (hereinafter referred to as Act in brevity) on 30.09.2006, proposing to acquire the petitioner's property along with the adjacent properties for the purpose of formation of a road south of Pondicherry-Villianur railway line, bye-passing Arumparthapuram-Natesan Nagar segment of NH45A at Kurumbapet and Odiampet Revenue Villages. A declaration under Section 6(1) of the Land Acquisition Act, 1894 was issued on 01.12.2006 and an award was passed on 16.11.2009. The petitioner was in dark about these facts as no notice was served on him at the appropriate time.
1.2 While so, the authorities suddenly trespassed into property without any notice to the petitioner, and justified it. The petitioner then made enquiries, gathered information and came to know of the above facts pertaining to acquisition. To repeat, no time any notice was served on him, even though he had become the owner of the property even before the date of notification under sec.4 of the Land Acquisition Act was issued. In these circumstances, the petitioner was served with a proceedings/notice dated 03-10-2016 to the effect that the compensation amount was deposited in the Court under Sec.30 of the Land Acquisition Act, 1894. Petitioner now challenges it on the following grounds:
a)That at no time prior to taking possession of the property has the petitioner been served with any notice of acquisition.
b)The notification was issued under Section 4(1) of the Land Acquisition Act r/w. Section 17 of the Act on 30.09.2006, but the possession of the property was taken for forming the said road only on 28.09.2015. Therefore, the land acquisition had a faulty start, in that, the emergent power under Section 17 of the Act is misused, if not abused.
c)Even if some degree of legal sanctity is granted to Section 4(1) notification, yet the entire acquisition proceedings has lapsed in view of the fact that the award was passed beyond two years from the last date of the publication of the declaration under Section 6 of the Act.
d)This apart, under the Proviso to Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as Right to Fair Compensation Act', or Central Act 30 /2013) compensation has to be awarded in terms of the said Act, as none of the land owners had been paid compensation on the date of its commencement.
e)Some nine landowners had earlier moved the High court challenging the acquisition in W.P.7070 of 2010, and were successful in having the acquisition proceedings quashed and thereafter the Minister for Public Works Department, Puducherry had convened a meeting on 26.08.2016, wherein an agreement was arrived at to fix the market price as concerning the lands pertaining to them at Rs.1,800 per sq.ft., and the petitioner is entitled to parity in treatment.
2.1 In the counter affidavits (as this include an additional counter affidavit) of the respondents, besides emphasising on the nature and significance of the project, it is averred how the procedure prescribed for acquiring the lands were complied. More importantly, it states that the last date of publication of sec.6 declaration was on 18-10-2009, and proceeds to state that the award was passed on 16-11-2009. On the allegation of petitioner's contention that no notices were issued to him, it was conceded that they were not done since the petitioner's name was not found in the revenue records, but it is averred that notice under sec.12(2) of the Old Act was given 22-09-2015.
2.2 Turning to the alleged differential treatment given to the petitioners in W.P.7070 of 2010 is concerned, it is averred that they had approached the court to declare that the acquisition had lapsed and consequently, they were invited for negotiation by the Deputy Collector (Revenue) South-cum-Land Acquisition Officer, Puducherry, that whatever that was decided in the meeting convened by the Minister for Public Works Department and whatever market price that was consensually fixed was not approved by the Government and therefore, the Government has decided to invoke the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) afresh.
3. Heard the counsel on either side. The arguments of the petitioner's counsel are bullet-pointed as below:
In an acquisition proceedings where notification was issued under Sec.4(1) read with Sec.17 of the Land Acquisition Act, 1894, on 30-09-2006, possession of the property was taken only on 28-09-2017. This readily leads to the only inference that resort to emergent powers and skipping the mandatory enquiry contemplated under Sec.5-A of the Act is an abuse of statutory power.
Secondly, the situation which the respondent faces is that, if the alleged illegality involved in invoking Section 17 alongside Section 4(1) does not get at the respondents, Section 11-A of the Act surely will, since the award was passed beyond two years from the last date of publication of Sec.6 declaration and consequently the acquisition has statutorily lapsed.
Thirdly, the award was passed on 16-11-2009, but no compensation was either paid to any of the land owners or deposited in the Court till 13-11-2015. Therefore, if at all, compensation may has to be paid in terms of the Proviso to Sec.24 of the Right to Fair Compensation Act as per Proviso to sec.24 of the said Act.
Fourthly, since the entire land acquisition proceedings has to be done de novo for the nine petitioners in W.P.No.7070 of 2010 and since the land acquisition proceedings initiated against present petitioner's lands have already lapsed, it is only appropriate that the Government commenced a fresh acquisition proceedings under the Right to Fair Compensation Act.
4. Mr.J.Kumaran, learned Government Advocate has defended what prima facie appears to the indefensible and made a valiant effort in invoking Section 114 of the Right to Fair Compensation Act. Relying on the judgment of the High Court of Bombay at its Aurangabad Bench in W.P.No.390 of 2002 in Smt.Sakharbai Haribhau Shelke(Deceased) & Others Vs. The Sub Divisional Officer, Shrirampur & Others, argued that in all cases where an award has not been passed under the Land Acquisition Act, 1894, then under Section 24(1)(a), a fresh award can be passed under Central Act 30/2013, and that this would not apply to the present case where award had been passed even as early as November, 2009.
5. Primarily the submissions made on behalf of the petitioner closes the issue. Under Section 11-A of the Land Acquisition Act, 1894, the entire proceedings for the acquisition of land will stand lapsed if an award under Section 11 is not passed within a period of two years from the last date of publication of the declaration under Section 6(1) of the Act. The details of this publication is provided even in the counter affidavit and they are tabulated as below :
Mode of Publication Date of publication English daily The New Indian Express 04.12.2006 Tamil daily Dinakaran 03.12.2006 Gazette Publication No.154 01.12.2006 Public affixture 17.10.2007 When the Government admits that the last date of publication of Section 6(1) declaration by public affixture was on 17.10.2007, then it does not require rocket science to hold that an award passed on 16.11.2009 will stand lapsed under Section 11-A of the Act. In all cases where the survival of land acquisition proceedings is tested under sec.11-A of the Land Acquisition Act, 1894, the Court only needs to look to the clock or the calendar, and not to any legal literature to know what the results are. Nothing more is required to be done thereafter, as nothing can survive beyond the date on which the two years period expired when the acquisition proceedings will stand statutorily lapsed. And, nothing can revive the acquisition either as there is no statutory means of achieving it. This predicament of the respondents is self invited, and its consequences are self inflicted, and the respondents should take the blame for the same.
6. Turning to the submissions of the learned Government Advocate for the respondents, more particularly in the context of his reliance on paragraph Nos.10 & 11 of the judgment in Smt.Sakharbai Haribhau Shelke case, the Bombay High Court only attempts to interpret Section 114(1) of the Right to Fair Compensation Act and the import of Section 24(1)(a) of the said Act, which may not be useful in the factual context of the present case.
7. A feeble and a less convincing argument was heard, when the learned counsel for the respondents submitted that the petitioner has not approached this Court adequately early. It might be true. But it is factually admitted by the respondents that no notice was served on the petitioner at any time before for him to know that there was an acquisition proceeding underway. Secondly, when the acquisition proceeding has lapsed in 2009, it lapsed for the Government, and under the statute the land owner is not required to do anything. This will imply that everything that has taken place till then shall have to be restored, as if it were travel back in a time machine. And, where any vesting of property had taken place, that gets divested in this process. And, if fairness should be considered as the spelling for administration in a democracy, then Government should go to its citizen to surrender possession of the land.
8.1 The clock does not stop ticking merely because the authorities under the Land Acquisition Act had preferred hibernation to action in doing things that which the statute mandates them do. The point however is, if a declaration that the acquisition proceedings has lapsed, (which this Court has already found that the petitioner is entitled to) will be effective, and is it an ideal option to address the agony and anxiety of the petitioner? To reiterate the state of affairs that are presented before this Court in perspective, the petitioner has lost his power of alienation, or, to transfer his property the day their lands are notified for acquisition in December 2006. The award came to be passed on 16-11-2009, but it was a paper-award with zero potency to satisfy the petitioner, as compensation amount was not deposited till November 2015, not just for the petitioner, but for all the land owners involved in the acquisition. By then Right to Fair Compensation Act has already come into force. Now the petitioner has challenged it, but in the meantime he has lost possession of his property which has since been fully utilised. A grand expropriation of the property of a citizen that the Land Acquisition Act cannot accommodate, and today, it can be justified only on the grounds of larger public good, but then where is the real remedy for the petitioner? In a circumstance such as this, to drive him to face another acquisition proceedings, which cannot but end only in passing an award, will only augment his agony, as the authorities are under a trust-deficit to inspire confidence that they would respect the rights of the petitioner at least now. To toss up a larger question, even if an acquisition proceedings is freshly resorted to, is there a probability that it will be dropped? Except a theoretical possibility, there is nothing to believe that it will happen, more so because roads have since been formed. Here, the affidavit of the petitioner itself reflects his anxiety, an aspect not adequately echoed in the argument of his counsel, to obtain compensation in terms of the Proviso to Right to Fair Compensation Act.
8.2 A pragmatic, and an expeditious way to ensure that the petitioner received compensation is to direct the respondents to pay it in terms of the Right to Fair Compensation Act by fast forwarding a few stages of the fresh land acquisition. This may mean that it is necessary to maintain that the acquisition is valid by travelling beyond the consequences of Sec.11-A of the Old Act, not because it is entirely justifiable in law, but because the silent cry of the petitioner for justice is heard louder than the legal effects of the course contemplated. It may also be stated here that this course can also be sustained even under the Proviso to Sec.24 of the Right to Fair Compensation Act as well.
9. Does not the course of events pain the one who believes in the rule of law? Here, couple of aspects continues to bother the conscience of this Court:
Now, as and when the compensation amount is determined and is paid in terms of the Right to Fair Compensation Act, who pays this differential value of much higher proportion under it? Secondly, will there not be a cost-escalation in implementing the project? Has the public finance, of which the State is a mere custodian for its citizens, become as if it were a corpus of a private trust that it may be managed unmindful of the wastage? Will anyone be held accountable for such gigantic lapses? A great leap, we can declare to have achieved, far beyond the proud moments when Mars came on the map of ISRO, if only some accountability is fixed.
The other aspect is that, is the government under any need for a reminder that the rule of law is not a one way lane, and that the Government should not bulldoze it while dealing with the rights of its own citizens? It has taken possession of petitioner's land when it has no authority to do it, since the acquisition proceeding has lapsed by then. Right to property under Article 300-A of the Constitution is not an ignorable emptiness occupying its pages. As long as the right to life under Article 21 is held in its majesty to mean a right to dignified life, then right to property under Article 300-A will identify itself as an integral part of it. Every infringement of right to property, therefore will have its reflection on the right to life. It is sad that the Government, by the people and of the people, which promises administration under our Constitution for the people, and as per rule of law, should be told: 'Please, do not trample upon the rights of your own citizens, and, deprive them of their rights if required, as per law.'
10.1 In conclusion, this Court directs the respondents to issue notice to the petitioner, grant them adequate and effective right of hearing, not to insist on halting technicalities, and determine the compensation under the Right to fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) within a period of six months from the date of receipt of the copy of this Order, and pay compensation forthwith, and at any rate not later than four weeks next thereof.
10.2 Any default to comply with this Order will be visited with imposition of such damages as this Court may consider as just and appropriate in the factual context of the case, for violating the petitioners' right to dignified life which their right to property ensured, and in that eventuality, all the officials in the hierarchy of the bureaucracy who become responsible for that situation will become jointly and severally liable personally for paying the said damages out of their salaries. They will also be required to appear in person to explain why the orders are not complied with.
11. This petition is accordingly allowed but with a modification as per the directions indicated above. No costs.
26.02.2018 ds Index : Yes/No Speaking Order / Non-speaking Order To:
1.The District Collector Villianur District Pondicherry.
2.The Deputy Collector (Revenue)-
South- cum-Land Acquisition Officer Pondicherry.
3.The Executive Engineer National Highways Department Public Works Department Pondicherry.
4.The Government of Pondicherry Pondicherry.
N.SESHASAYEE,J., ds W.P.No.43007 of 2016 26.02.2018