Jharkhand High Court
Maithon Power Limited vs The State Of Jharkhand Through The ... on 22 February, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.-5242 of 2017
MAITHON POWER LIMITED, A company registered under the Companies
Act, 1956, having its registered Office at A-34, Sant Tukaram Road, Camac
Bunder, Mumbai 400009, State- Maharashtra, having its Works Site at MA-5,
Gogna Colony, Maithon, PO & PS- Maithon Dam, District- Dhanbad through
its Deputy Chief Executive Officer, namely, Purushottam Thakur, son of
Chandra Shekhar Thakur, resident of MA-5, Gogna Maithon Dam, PO and
PS- Maithon Dam, District- Dhanbad ...Petitioner
-V e r s u s-
1. The State of Jharkhand through the Deputy Commissioner, Dhanbad
2. The Additional Collector, Dhanbad
3. District Land Acquisition Officer, Dhanbad
.... Respondents
CORAM: - HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner :- Mr. Sumeet Gadodia, Advocate Mr. Vivek Raj, Advocate For the State-respondents:- Mr. Md. Shamim Akhtar, G.A.-III Order No.-07 Dated: 22.02.2018 The present writ petition has been filed for issuance of direction upon respondents to take steps for identifying the rightful owners of the land acquired for railway line project of the petitioner and for making rectification in the Awards to make payment of consequential compensation to actually affected persons within reasonable time under the provisions of the Land Acquisition Act, 1894 (in short "the Act, 1894").
2. The factual background of the case as stated in the writ petition is that the petitioner is a Joint Venture entity of the Tata Power Company Limited and Damodar Valley Corporation Limited (DVC) having shares of 74.26 respectively. The petitioner set up a Power Station at Maithon in the District of Dhanbad having generation capacity of 1050 MW situated over an area of 1100 Acres of land out of which 564 acres of land was acquired in favour of DVC. The petitioner is in the process of establishing a dedicated railway line primarily for transporting raw materials i.e coal to its Power Plant. Out of 82 acres of land, which is dedicated for railway corridor, 64 acres of land have been acquired under Land Acquisition 2 proceeding in favour of DVC vide Letter No. 32/08/583 dated 14.07.2008 and remaining 18 acres of land have been transferred by the State Government to DVC being Gair Mazurwa land for the purpose of the said railway corridor. The possession certificate of the land has already been provided in favour of the petitioner through DVC and the petitioner has already deposited a sum of Rs. 18.92 crores through DVC towards payment of compensation to the land owners. The petitioner is in the process of establishment of its railway line and the work is in process, however it is facing objections/hindrances from certain persons on the pretext that they are the real owners of the said land who have not yet been paid compensation. The petitioner has come to know that representations of various persons are kept pending either before the Deputy Commissioner, Dhanbad or before the District Land Acquisition Officer, Dhanbad wherein disputes have been raised for alleged wrongful payment of the amount of compensation to several persons. The said representations have been filed by the affected persons claiming themselves to be the rightful owners of the land in question before the Deputy Commissioner on 04.07.2016 and on 28.07.2016 for taking immediate steps for resolving the disputes. However, the respondents did not take any step in identifying the rightful owners of the land and for taking appropriate steps for rectification of the Award and/or payment of compensation to actually affected persons. The petitioner earlier filed a writ petition being W.P.(C) No. 5084 of 2016, which was disposed of on 06.09.2016 directing the competent authority i.e Deputy Commissioner, Dhanbad to consider the representations of the petitioner with due expedition considering the nature of the project and to take steps in accordance with law after due verification of the related facts. Pursuant to the order dated 06.09.2012, the petitioner filed representation dated 26.09.2016 for taking appropriate action for resolving the dispute whereupon a public notice was issued by the respondent no.3 vide Memo No. 1161 dated 12.11.2016 inviting claims for payment of compensation in respect of various plots of land of village Pandra, which were acquired in favour of the petitioner. Subsequently, several rightful claimants have been 3 identified however the dispute still subsists due to which the project of the petitioner is being delayed.
3. The learned counsel for the petitioner submits that in spite of the fact that the petitioner has deposited the compensation amount for the acquired land and a possession certificate has also been issued, the project of the petitioner for construction of a railway line is being delayed due to the fact that the compensation were paid to wrong persons on the basis of forged documents. It is further submitted that a verification report has been submitted by the Sub- Divisional Officer, Dhanbad before the respondent no. 3 identifying the actual persons to whom compensation were to be paid pursuant to the land acquisition and even recommendation has been made for recovery of compensation paid to fictitious persons and/or the persons who have impersonated and have received compensation instead of the actual land losers. The report of the Sub-Divisional Officer, Dhanbad would clearly reveal that several persons have received compensation without any entitlement, however till date no step has been taken by the respondents for correction of the award due to which the petitioner‟s project is in jeopardy. It is also submitted that the representations filed by the villagers would indicate that several awardees whose names were included in the Award, were not the rightful owners of the land and the compensation have been paid to wrong persons on the basis of forged documents. The District Administration has also lodged FIR against several persons, but no any step has been taken to rectify the Award so as to make payment of compensation amount to the rightful owners. Due to the dispute regarding payment of compensation in lieu of the acquired land, the petitioner is facing hindrances put by the villagers. The railway line project of the petitioner is one of its essential requirements for effective and smooth running of the power plant and also for its further expansion. In absence of a dedicated railway line for transporting/meeting the coal requirement, which is one of the most essential raw materials for the petitioner, the whole project would be adversely affected.
44. In support of his argument, learned counsel for the petitioner puts reliance on the following judgments :-
(i) (2000) 3 SCC 581 [United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors.];
(ii) (2002) 5 Mh.L.J 616 [Mangala Sharad Mutha Vs. State of Maharashtra & Ors.];
(iii) [(2009) 16 SCC 1 Steel Authority of India Ltd. Vs. Sutni Sangam & Ors.];
(iv) (2010) 8 SCC 383 [Meghmala & Ors. Vs. G Narsimha Reddy & Ors.] and
(v) Smt. Nirmala Vs. Competent Authority (Land Acquisition) and Additional District Collector (Ceiling), Bundi Rajasthan & Anr.
(S.B Civil Writ Petition No. 3474 of 2012)
5. The learned counsel appearing on behalf of the respondents submits that in compliance of the order dated 06.09.2016 passed in W.P.(C) No. 5084 of 2016, the office of the respondent no. 3 has carried out the exercise of finding out the rightful owners of the land under acquisition as previously erroneous awards had been prepared and payments had also been made to wrong persons on the basis of said erroneous awards. The respondent no. 3 along with his team comprising of Revenue Karamchari and Anchal Amin prepared a detailed spot inquiry report in phased manner to find out the rightful claimants of the land under acquisition. The fact regarding the inquiry was widely published through notices in local newspapers requesting the actual claimants of the land to be present with necessary documents during the spot inquiry. It was confirmed during the spot inquiry that the awards prepared in 2010 contained the name of many unauthorized and fictitious persons, while the names of actual owners of the land in question did not figure in the awards. Notices were issued to such persons, who had wrongly received the compensation. It is further submitted that more than 30 such persons have returned the compensation amount received by them till date and the process for recovery is continuing against all such persons who were wrongly paid compensation. Though the office of respondent no. 3 has identified the actual claimants in the majority of the cases where names of wrong persons/non-owners had previously been entered in the award, yet the respondent no. 3 5 has been unable to make changes in the award prepared in 2010, as the provisions of section 13-A of the Act, 1894 prohibits any correction in the award after the lapse of six months from the date of the award. The concerned raiyats have also repeatedly refused to get the matter referred under Section 18 of the Act, 1894 before the competent court. It is also submitted that FIRs have been lodged both by the District Administration as well as the Anti-Corruption Bureau, Dhanbad in this regard. It is finally submitted that the payment to rightful owner cannot be made without rectifying the previous awards.
6. Heard the learned counsel for the parties and perused the materials available on record. The petitioner planned to establish dedicating railway line upon the land which were acquired in favour of DVC primarily for transporting raw materials i.e coal to its Power Plant. However, the villagers started causing hindrance to the project of the petitioner agitating that though they are the real owners of the land, yet they have not been paid any compensation. Earlier also, a writ petition was filed by the petitioner, which was disposed of vide order dated 06.09.2016 directing the Deputy Commissioner, Dhanbad to look into the matter expeditiously. On perusal of the counter affidavit filed on behalf of the respondent nos. 1 to 3, it appears that the matter of awarding compensation was enquired and it was found that the award was prepared in favour of some fictitious persons on the basis of forged documents and they also received compensation. It further transpires that more than 30 persons, who were not entitled to receive compensation, have returned the compensation amount and the process for recovery of wrongly disbursed compensation is continuing. The main contention of the respondents is that in view of the provisions of section 13-A of the Act, 1894, the respondent no. 3 is unable to make any rectification in the award after lapse of six months from the date of award and since no application for referring the matter under Section 18 of the Act, 1894 has been received from the genuine/actual claimants, the same could not be referred to the appropriate Court.
67. The relevant portions of the Act, 1894 are quoted as under for appreciation of the issue involved in the present writ petition.
S.12 : Award of Collector when to be final (1) Such award shall be filed in the Collector„s office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and apportionment of the compensation among the persons interested.
(2) 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.
S.13A : Correction of clerical errors, etc (1) The Collector may, at any time but not later than six months from the date of the award, or where he has been required under section 18 to make a reference to the Court, before the making of such reference, by order, correct any clerical or arithmetical mistakes in the award or errors arising therein either on his own motion or on the application of any person interested or a local authority:
Provided that no correction which is likely to affect prejudicially any person shall be made unless such person has been given a reasonable opportunity of making a representation in the matter.
(2) The Collector shall give immediate notice of any correction made in the award to all the persons interested.
(3) Where any excess amount is proved to have been paid to any person as a result of the correction made under sub-section (1), the excess amount so paid shall be liable to be refunded and in the case of any default or refusal to pay, the same may be recovered as an arrear of land revenue.]
8. On conjoint reading of the aforesaid provisions of the Act, 1894, it would emerge that the award prepared by the Collector is final and conclusive as between the Collector and the persons interested. However, any clerical or arithmetical error in the award may be corrected within six months from the date of award or before making reference under Section 18 of the Act, 1894 and before making such correction, a notice and opportunity of hearing is required to be given to the affected person.
79. The factual context of present case is that while acquiring the land in question, some persons played fraud and misrepresentation before the authorities and resultantly the awards were wrongly prepared in their favour who also fraudulently received the compensation. The petitioner agitated the said matter before the district authorities and an enquiry was carried out wherein the fraud committed in receiving the compensation surfaced. Subsequently, criminal cases were also lodged against the erring persons and recovery exercise of wrongly disbursed compensation amount is still continuing. It further appears that about 30 persons have also returned the compensation amount.
10. Thus, the question arises before this court is as to whether in case of fraud or misrepresentation, the Collector is empowered to recall/rectify the award after the lapse of statutory period of six months.
11. In the case of Rajendra Singh (supra.), the Hon‟ble Supreme Court has held as under:-
"16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degrees, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim."
12. In the aforesaid judgment, the Hon‟ble Supreme court held that if an order has been obtained on the basis of fraud or misrepresentation, the Court or the Tribunal has the power to recall it.
13. In the case of Steel Authority of India Ltd. Vs. Sutni Sangam reported in (2009) 16 SCC 1, the Hon‟ble Supreme Court has held as under:-
"The proceeding under the Land Acquisition Collector is of an administrative nature and not of a judicial or quasi-judicial character."8
14. Further, in the case of Mangala Sharad Mutha Vs. State of Maharashtra & Ors. (supra), the Hon‟ble Supreme Court has held as under:-
"13. In the case of Grindlays Bank Ltd. VS. Central Government Industrial Tribunal and others, AIR 1981 SC 606 it was contended that, under the Industrial Disputes Act, 1947 or the Rules framed thereunder, there was no power conferred upon the Tribunal to set aside an ex-parte Award or to review the same. A distinction was sought be drawn between application of review and application for setting aside an ex-parte Award based on evidence by contending that, if there was no evidence led between the Tribunal, there may be power to set aside the ex-parte order but if the Award was based on evidence, the setting aside of the Award could not but virtually amount to a review. The Apex Court, while repelling the contentions regarding the Tribunals powers to review or set aside an ex-parte A ward, held in para 6, thus;
"We are of the opinion that the Tribunal had the power to pass the impugned order if it thought fit in the interest of justice. It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental power as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary."
15. In the aforesaid case, it has been held by the Hon‟ble Apex Court that even in absence of any express provision in a particular statue, the Tribunal has power to pass such ancillary or incidental order as is necessary to discharge the function effectively for the purpose of doing justice between the parties.
16. The Hon‟ble Supreme Court in a judgment rendered in the case of Meghmala & Ors. Vs. G. Narsimha Reddy & Ors. (supra) has held thus:-
9"28. It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent Authority, such order cannot be sustained in the eyes of law. "Fraud avoids all judicial acts ecclesiastical or temporal." ----
36. From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non- executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non-est."
17. In the case quoted hereinabove, the Hon‟ble Supreme Court has held that any order obtained by fraud or misrepresentation is non-est in law and as such the doctrine of res judicata will not attract in those cases. Under such situation, the court has every power to recall the order.
18. In the case of Smt. Nirmala Vs. Competent Authority (Land Acquisition) and Additional District Collector (Ceiling), Bundi Rajasthan & Anr. (supra), a single Bench of Rajasthan High Court after relying on the judgments of Hon‟ble Apex Court rendered in the cases of Sutni Sangam (supra.) and Rajendra Singh (supra.) has held as under:-
"7. In my considered opinion, the argument of the counsel for the petitioner that the award dated 09.05.2011 could not have been reviewed by the competent authority is foreclosed by the judgment of the Hon‟ble Supreme Court in the case of Steel Authority India Ltd. VS. Sutni Sangam & Ors. as also for the inherent power attributed to all courts and Tribunals by the Hon‟ble Supreme Court in the case of United India Insurance Co. Ltd. Versus Rajendra Singh (Supra.) to recall orders obtained by fraud.-----"
19. The fact situation of the present case is that the aggrieved persons have neither chosen to make any application under Section 18 of the Act, 1894 for referring the matter to the Court nor have handed over the possession of the land to the petitioner which has already deposited the compensation amount before the State authorities in lieu of acquisition of land. The possession certificate 10 has also been issued in favour of the petitioner. Since, the petitioner‟s project has been objected by some persons claiming to be the rightful owners of the land, the petitioner has been pursuing the matter before the State authorites so that the concerned project may be completed.
20. In view of the judgments of Hon‟ble Supreme Court discussed hereinabove, it would emerge that if any order is obtained by playing fraud or misrepresentation, such order is non-est in the eyes of law and the proceeding leading to passing of such order would itself vitiate. The Court/the Tribunal has ample power to recall such order and to pass a fresh one. Thus, the helplessness posed by the respondent authorities that they do not have jurisdiction to correct the award due to lapse of six months period prescribed for correcting the award, does not appear to be sustainable.
21. Under the aforesaid circumstance, the concerned awards are declared to have vitiated due to fraud/misrepresentation committed at the instance of the wrongful claimants. The respondent authorities are directed to cancel the earlier awards passed in favour of wrong persons/awardees and to further prepare fresh awards in favour of genuine persons and proceed in accordance with law. It is to be kept in mind by the respondent authorities that the project of the petitioner has already been delayed due to the their own lapses, as such all the exercise to remove the hurdle in the said project shall be completed within four months from the date of receipt/production of a copy of this order.
22. The writ petition is accordingly disposed of.
(Rajesh Shankar, J.) Ritesh/ A.F.R