Madras High Court
Mrs.Jayalakshmi vs The Government Of Tamil Nadu on 26 August, 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.08.2009 CORAM THE HONOURABLE Mr. JUSTICE K.VENKATARAMAN W.P.No.30199 of 2008 and M.P.No.1 of 2008 1.Mrs.Jayalakshmi 2.M.Palanivel 3.S.A.Ramar 4.G.Mythili 5.Manoharan 6.Jayaraman 7.Vairajothi 8.K.Saroja ... Petitioners Vs. 1.The Government of Tamil Nadu, represented by its Secretary to Industries Department, Secretariat, Chennai-9. 2.The District Collector, Cuddalore District, Cuddalore. 3.The Neyveli Lignite Corporation, represented by Chairman, Neyveli. ... Respondents Writ Petition has been filed under Article 226 of The Constitution of India for the issuance of writ of mandamus directing the respondents to pay compensation as contemplated under the Provisions of Tamilnadu Acquisition of Land for Industrial purpose Act, 1997 to the lands comprised in Survey No.350 in Kammapuram Village, Virudhachalam Taluk, Cuddalore District to the petitioners. For Petitioners : Mr.K.Sakthivel For Respondents : Mrs.D.Geetha, AGP, for R.1 and R.2 Mr.N.A.K.Sharma, for R.3 O R D E R
The petitioners have come up with the present writ petition for a mandamus directing the respondents to pay compensation as contemplated under the Provisions of Tamilnadu Acquisition of Land for Industrial Purpose Act, 1997 to the lands comprised in Survey No.350 in Kammapuram Village, Virudhachalam Taluk, Cuddalore District.
2. The case of the petitioners, in nutshell, are set out here under:-
2.1. The petitioners are in possession and enjoyment of the Agricultural lands comprised in Survey No.350 in Kammapuram Village, Virudhachalam Taluk, Cuddalore District for more than 50 years. Initially, the petitioners were issued with 'B' memo under the Tamil Nadu Encroachment Act and later on, they have been provided with 2C pattas for the said lands by the Government of Tamil Nadu. The petitioners are entitled for patta in terms of Government notification that all those persons who have been in possession and enjoyment of Government Poramboke lands for more than five years are eligible for patta for the said land and they have also been provided with 2C patta confirming their possession and enjoyment.
2.2. The Government issued G.O.Ms.No.66, Industries Department dated 17.05.2005 and thereby accorded administrative sanction for acquiring the lands under the Provisions of Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997, (herein after referred to as the Act), for acquiring the lands measuring an extent of 1929.29.85 Hectors in favour of the Neyveli Lignite Corporation.
2.3. While so, respondents 1 and 2 have acquired their lands as per the above administrative sanction under the provisions of the said Act but, they have neither acquired their lands as per the said Act nor issued any notice of handing over possession of the said lands to the third respondent. When the petitioners came to understand that respondents 1 and 2 have handed over symbolic possession to the third respondent, they sent a representation dated 12.05.2008 to the second respondent seeking compensation for vesting their lands with the third respondent. On receipt of the same, the Special Tahsildar sent a reply dated 03.06.2008 stating that there was no provision for payment of compensation in respect of Government lands. Aggrieved against the same, the petitioners sent a rejoinder dated 30.06.2008 to the second respondent and again the Tahsildar sent a reply dated 25.07.2008 stating that there was no provision to pay compensation for the encroached lands as per the Land Acquisition Act.
Hence, challenging the same, the petitioners have filed the present writ petition for the relief set out earlier.
3. Counter affidavit was filed on behalf of respondents 1 and 2, wherein the following facts have been set out:-
3.1. The encroachers were issued with 'B' memo as per the Tamil Nadu Land Encroachment Act and penalty amount was collected from them for their encroachment by Tahsildar, Vridhachalam. No land patta was issued to the petitioners. Though the Government is implementing the scheme of giving patta to those who are enjoying Government lands, as the lands encroached by the petitioners are required by Neyveli Lignite Corporation for mining purpose, they are not provided with patta in respect of the lands in question.
3.2. Since the lands in question are Government lands, there is no necessity to acquire them under the provisions of the said Act. Proposals for alienating the lands to Neyveli Lignite Corporation were sent to Government through Special Commissioner and Commissioner of Land Administration, Chennai by the District Revenue Officer, Neyveli vide letter dated 04.08.2008. On receipt of the orders from the Government, these lands will be handed over to Neyveli Lignite Corporation.
3.3. As the lands under enjoyment of the petitioners are Government Poramboke lands, there is no necessity to acquire them under the provisions of Land Acquisition Act. Since the petitioners are the encroachers of Government Poramboke lands, they will not be treated as interested persons for the lands under the provisions of the said Act. As the petitioners are not the land owners / pattadars and they are only encroachers of the lands, there is no provision for making payment of compensation under the provisions of the said Act.
3.4. The proposals for alienating the lands in R.S.No.350 of Kammapuram Village, Vrichachalam Taluk in favour of Neyveli Lignite Corporation are pending with the Government. However, the second respondent by proceedings dated 13.06.2008, permitted the Neyveli Lignite Corporation to enter upon the said lands and other lands nearby aggregating an extent of 23.28.5 hectares. Consequent thereto, the lands in question and other similarly placed lands in vicinity are in possession of the Corporation since 13.06.2009. The lands are Government Poramboke lands and the Government has every right to alienate the same to Neyveli Lignite Corporation.
Thus, the counter affidavit of respondents 1 and 2 sought for the dismissal of the writ petition.
4. Counter affidavit was filed on behalf of the third respondent, wherein the following facts have been set out:-
4.1. The prayer in this writ petition is unsustainable for the reason that no proceedings were initiated by respondents 1 and 2 to acquire the lands in question under the Land Acquisition Act. There is no question of the Government acquiring the lands belonging to it nor can the Government initiate proceedings under the Land Acquisition Act in respect of such lands.
4.2. In respect of the allegation that the petitioners are in occupation and enjoyment of the lands in question and their right was also recognised by the revenue authorities of respondents 1 and 2 by grant of 2C pattas in the name of respective petitioners, it is contended that no tangible proof in support of such averments in the affidavit have been produced by the petitioners along with the writ petition. The issues involved in this writ petition are disputed questions of fact, which cannot be resolved under Article 226 of the Constitution of India.
4.3. Since the land in question belongs to the Tamil Nadu Government, respondents 1 and 2 initiated proceedings to alienate the said lands to the Corporation. Accordingly, a publication under Section 6 in Form 1-A of Act 8 of 1923 was made and a 'Tom Tom' was also effected in the village on 15.04.2005. Thereupon the Revenue Divisional Officer, Vridhachalam by proceedings dated 03.06.2005, ordered removal of the encroachment in the lands in question and re-classified as Government Tharisu lands. The petitioners have not placed any materials to show that they have made any objection with respect to removal of encroachment or reclassification of the lands, even though proper publication had been made on 15.04.2005. Since the lands in question are urgently required for the purpose of mining, on the request of the Corporation seeking permission to enter upon the said land, the second respondent by proceedings dated 13.06.2008, permitted the Corporation to enter upon the said lands and other nearby aggregating lands to an extent of 23.28.5 Hectares.
4.4. There has been no violation of Articles 14 or 21 or 31-A as alleged. There is nothing to show that the petitioners had been issued with any 2C pattas and even if such pattas have been issued, it would not entitle them for any compensation. If the petitioners are entitled for any benefits under National Policy on Resettlement and Rehabilitation for Project Affected Families, 2007 (NRRP, 2007), even though they were not owners of the lands, the same would be provided to them in terms of and subject to the conditions stipulated in NRRP, 2007.
Thus, the counter affidavit of the third respondent sought for the dismissal of the writ petition.
5. Mr.K.Sathivel, learned counsel appearing for the petitioners, Mrs.D.Geetha, Learned Additional Government Pleader, appearing for respondents 1 and 2 and Mr.N.A.K.Sharma, learned counsel appearing for the third respondent have made their submissions based on the pleadings referred to above.
6. Learned counsel appearing for the petitioners would mainly contend that --
(i) since respondents 1 and 2 have acquired the lands of the petitioners which are in their possession, the petitioners are entitled for compensation;
(ii) when 2C pattas have been granted in favour of the petitioners, without paying compensation to them, the lands cannot be handed over to the third respondent;
(iii) by granting 2C pattas in favour of the petitioners, respondents 1 and 2 have recognised them as persons being in possession of the lands and hence, they are entitled for compensation.
7. However, it is contended on behalf of the learned Additional Government Pleader appearing for respondents 1 and 2 that--
(a) 2C pattas have not been issued to the petitioners and none of them have been issued with patta;
(b) there is no necessity to acquire the lands in question since the lands belonged to the Government;
(c) the petitioners are not interested persons under the provisions of the Tamil Nadu Acquisition of Land for Industrial Purposes Act 1997 and hence, there is no provision for making payment of compensation under the provisions of the said Act.
(d) the petitioners are not land owners / pattadars and hence, they have no right to claim compensation;
(e) by the proceeding of the second respondent dated 13.06.2008, possession of the lands have been handed over to the Neyveli Lignite Corporation. The Government has got every right to convey its lands to the third respondent since the lands belong to the Government.
8. Learned counsel appearing for the third respondent Neyveli Lignite Corporation would submit the following contentions:-
(i) The prayer as framed, is not sustainable for the reason that no proceedings were initiated by respondents 1 and 2 to acquire the lands in question.
(ii) Since the lands in question belong to the Government of Tamil Nadu, the question of acquiring the said lands does not arise.
(iii) No tangible proof in support of the averment that the petitioners have been issued with 2C pattas, is produced before this Court.
(iv) Even if 2C pattas were issued in favour of the petitioners, it will not entitle them for any compensation.
(v) The possession of the lands in question was taken over by the third respondent and if the petitioners are entitled for any benefits under National Policy on Resettlement and Rehabilitation for Project Affected Families, 2007 (NRRP 2007), they would be provided with the benefits, provided, if they are entitled for the same.
9. Considering the said submissions made by the learned counsel appearing for the petitioner as well as learned Additional Government Pleader appearing for respondents 1 and 2 and the learned counsel appearing for the third respondent, the following findings emerge:-
(i) It is the case of the petitioners that they are in possession and enjoyment of the lands in question by virtue of grant of 2C pattas in their favour. However, the said fact is disputed by the learned Additional Government Pleader appearing for respondents 1 and 2 and the learned counsel appearing for the third respondent. To substantiate their claim that they are issued with 2C pattas, as rightly contended on behalf of the respondents, no document is forthcoming on the side of the petitioners. None of the petitioners have produced documents to substantiate their plea that 2C pattas have been granted in their favour. In view of the same, the one and only conclusion that could be arrived at is that the petitioners are not issued with 2C pattas.
(ii) It is the case of the petitioners that they are in possession and enjoyment of the lands in question time immemorial and that they are entitled for compensation. It is not in dispute and the petitioners did, in fact, not claim that the lands in question belonged to them. The entire affidavit filed in support of the writ petition makes it amply clear that the petitioners are not claiming compensation on the ground that they are the owners of the lands. Their entire case centres around that they are in possession and enjoyment of the lands in question by virtue of their being in possession of the lands and by virtue of 2C pattas granted to them. When the petitioners are not the owners of the lands and when they are not in possession of the lands by virtue of ownership over the lands, they are not entitled for compensation. Compensation could be awarded only if the lands belonging to the petitioners are taken possession by virtue of land acquisition proceedings. In the case on hand, even as per the case of the petitioners, they are not the owners of the lands and hence, they are not entitled for compensation.
(iii) Then, the next question arises for consideration is, whether the petitioners being in possession of the lands by paying "B" memos, are entitled for any compensation. The petitioners, who are paying 'B' memos for the lands in which they are in possession, have to be considered only as encroachers. 'B' memo viz., penal charges would be levied and received from the persons who are in encroachment of the Government properties. They cannot be considered as owners or persons in lawful possession. Hence, the question of compensation to the petitioners may not arise. At the maximum they will be entitled for a notice before they are asked to vacate the lands. Even this question does not arise for consideration here since the plea of the petitioners are only a claim for compensation and not that they are sought to be vacated or evicted without due process of law.
(iv) In respect of the subject lands, respondents 1 and 2 seem to have initiated proceedings to alienate the lands to the Neyveli Lignite Corporation. A publication under Section 6 in form 1-A of the Act 8/2003 was said to be made and a 'tom tom' was also effected in the Village on 15.04.2005. Thereupon, the Revenue Divisional Officer, Vridhachalam, in his proceedings dated 06.03.2006, seems to have ordered removal of the encroachment in the lands and re-classified as Government Tharisu lands. It seems, the petitioners have not placed any materials to show that they have made any objection with respect to removal of encroachment or re-classification of the lands even though publication was effected on 15.04.2005. In fact, this point raised in the counter affidavit filed on behalf of the third respondent is not disputed by filing reply for the same.
(v) The Special Tahsildar, Land Acquisition, Neyveli, on a request made by the petitioners for payment of compensation, by proceedings dated 03.06.2008, seems to have rejected their request for compensation on the ground that since the lands in question are Government Poramboke lands and they are not entitled for compensation. Aggrieved over the same, the petitioners sent a rejoinder dated 30.06.2008 to the second respondent and again the Special Tahsildar sent a reply dated 25.07.2008 stating that there is no provision to pay compensation for the encroached lands as per the Act. The petitioners admittedly have not challenged those orders even though those orders find place in the typed set of papers filed by them.
(vi) The petitioners have come up with the present writ petition for a mandamus directing the respondents to pay them compensation for acquiring the lands in question. A writ of mandamus can be issued only for enforcing a legal right. In A.I.R. 1977 SUPREME COURT 276 M.S.Jain v. State of Haryana, Their Lordships have held that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as well as legally protected right before one suffering a legal grievance can ask for a mandamus. Para 9 of the said judgment is usefully extracted here under:-
"9. The High Court rightly dismissed the petitions. It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something."
(vii) Again in A.I.R. 2002 SUPREME COURT 1598 Director of Settlements, A.P. v. M.R.Apparao, Their Lordships have held that a notice can be issued only if he or she has got a legal right which has been infringed. Para 17 of the said judgment is usefully re-produced here under:-
" 17. Coming to the third question, which is more important from the point of consideration of the High Courts power for issuance of mandamus, it appears that the Constitution empowers the High Court to issue writs, directions or orders in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights conferred by Part III and for any other purpose under Article 226 of the Constitution of India. It is, therefore essentially, a power upon the High Court for issuance of high prerogative writs for enforcement of fundamental rights as well as non-fundamental or ordinary legal rights, which may come within the expression for any other purpose. The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon their discretion, they must be exercised along the recognised lines and subject to certain self-imposed limitations. The expression for any other purpose in Article 226, makes the jurisdiction of the High Courts more extensive but yet the Courts must exercise the same with certain restraints and within some parameters. One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus. Mandamus means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition "
Thus, as stated already, since the petitioners are not having any legally enforceable right, the relief that has been sought for by them cannot be granted.
10.1. Learned counsel appearing for the petitioners relied on the decision reported in (1994) 5 Supreme Court Cases 239 Inder Parshad v. Union of India and others and contended that once the patta is granted to an individual and later if the land is required for public purpose, the title vests with the grantee and therefore the grantee is entitled to full compensation of the acquired land.
10.2. However, the said judgment will not be of any use to the petitioners since as stated already, the petitioners have not established that they have been granted with 2C pattas.
10.3. The other judgment that has been relied on by the learned counsel appearing for the petitioners is reported in CDJ 2006 SC 1152 U.P.State Industrial Development Corporation v. Rishabh Ispat Ltd., & others. That is the case where the High Court found that there was no evidence whatsoever to substantiate the plea that the claimants were in illegal and unauthorised possession of the lands, which had vested in the State of Uttar Pradesh. Further, the High Court of Uttar Pradesh also noted that the Special Land Acquisition Officer offered compensation to the claimants and later, in a proceedings under Section 18 of the Act, it has been contended that the claimants are unauthorised occupants of the lands. In such circumstances, the Hon'ble Apex Court has held that the High Court was right in holding that there was no material on record to prove that some of the claimants were unauthorised occupants of the Government lands and not entitled to compensation for such lands. Further, it has been held that the High Court was also justified in holding that in a reference under Section 18 of the Act, such a contention cannot be raised, because matters that may be considered by a Court in a reference under Section 18 of the Act are matters enumerated in Section 18 itself as also the following sections. Thus, the said judgment may not be of any relevance to the facts on hand. In the present case on hand, it is contended even in the beginning stage itself, that the petitioners are encroachers and that they are not entitled for any compensation.
10.4. The next judgment that has been cited by the learned counsel appearing for the petitioners is the judgment of the Division Bench of this Court reported in CDJ 2008 MHC 5382 Ramaratna Theatre v. The State of Tamil Nadu, rep. by the Secretary to Government, Home (Cinema) Department & Others. The matter in issue that has been put forth before the Division Bench was "whether the cancellation of 'C' form licence issued to Ramaratna Theatre, the appellant in the said matter, on the ground that the theatre is in existence in a Government Poramboke land, is valid or not.
10.5. Rule 13 (1) of the Tamil Nadu Cinemas (Regulations) Rules, 1957 envisages that if the applicant for the licence is the owner of the site, building and equipment, he shall produce to the licensing authority the necessary records relating to his ownership and possession thereon. If he is not the owner, he shall, to the satisfaction of the licensing authority, produce documentary evidence to show that he is in lawful possession of the site, building and equipment. While considering the said aspect, the Division Bench has held that issuance of 'B' memo would amount to possession recognised by the Government. Further, it has been held that no documents were placed before the licensing authority to show that the land is a Government poramboke land except the statement of the licensing authority. Thus, the Division Bench of this Court while considering the provisions of Tamil Nadu Cinemas (Regulations) Act, 1955, which recognises a person in lawful possession of the site for grant of 'C' form licence, has held that the possession of the theatre cannot be held to be illegal, though it may be an encroacher.
10.6. However, the position in the case on hand is entirely different. In the case on hand, the petitioners would be entitled to compensation only if they are the owners of the lands and are in lawful occupation or possession of the same. Since I have already held that the petitioners at best could be termed only as encroachers, they are not entitled to compensation. Thus, the judgment cited above, also may not be helpful to the case of the petitioners.
11. Learned counsel appearing for the third respondent relied on the judgment reported in JT 2003 (1) SC 18 Sharda Devi v. Stateof Bihar & Anr. wherein, in para 24, the Hon'ble Apex Court has held as follows:-
"... A dispute as to pre-existing right or interest of the State Government in the property sought to be acquired is not a dispute capable of being adjudicated upon or referred to the Civil Court for determination either under Section 18 or Section 30 of the Act. The reference made by the Collector to the Court was wholly without jurisdiction and the civil Court ought to have refused to entertain the reference and ought to have rejected the same. All the proceedings under Section 30 of the Act beginning from the reference and adjudication thereon by the Court suffer from lack of inherent jurisdiction and are therefore, a nullity liable to be declared so".
11.1. In the same judgment, the judgment reported in A.I.R. 1921 Oudh 31 Mohammad Wajeeh Mirza v. Secretary of State for India in Council had been referred to. The said passage is usefully extracted here under:-
" ... that the question of title arising between the government and another claimant cannot be settled by the judge in a reference under Section 18 of the Act. When the government itself claims to be the owner of the land there can be no question of its acquisition and the provisions of the Land Acquisition Act cannot be applicable. In our opinion the statement of law so made by the learned Judicial Commissioners is correct".
11.2. Yet another decision that has been relied on by the learned counsel appearing for the third respondent is reported in A.I.R. 1964 Supreme Court 685 State of Orissa v. Ram Chandra. It would be useful to extract para 12 of the said judgment and the same is extracted here under:-
" 12. Mr Tatachari, however, has contended that the right on which the petitions of the respondents are founded is a right flowing from the respondents continuous possession of the properties for many years, and he argues that if such a right is proved, the High Court would be justified in issuing a writ protecting that right. This argument is clearly fallacious. Mere possession of the property for however long a period it may be, will not clothe the possessor with any legal right if it is shown that the possession is under a grant from the State which is resumable. Such long possession may give him a legal right, to protect his possession against third parties, but as between the State and the grantee, possession of the grantee under a resumable grant cannot be said to confer any right on the grantee which would justify a claim for a writ under Article 226 where the grant has been resumed. In dealing with this argument, we have assumed without deciding, that though a suit under Section 9 of the Specific Relief Act would have been incompetent against the appellant, a similar relief can be claimed by the respondents against the appellant under Article 226. Even on that assumption, no right can be claimed by the respondents merely on the ground of their possession, unless their right to remain in possession is established against the appellant, and this can be done if the grant is held to be not resumable. "
12. The above referred judgments will amply prove that if a State Government has got a right or interest over the property in question, a person in possession however long it may be, will not clothe with any legal right.
13. Thus, considering the above facts and circumstances, the irresistible conclusion that could be arrived at is that the petitioners, who are not having any legal right over the lands in question, are not entitled for any compensation.
14. In fine, the writ petition stands dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.
sbi To
1.The Secretary to Industries Department, Government of Tamil Nadu, Secretariat, Chennai-9.
2.The District Collector, Cuddalore District, Cuddalore.
3.The Chairman, Neyveli Lignite Corporation, Neyveli