Subramanian v. General Manager, Southern Railways — 1993 DIGILAW 513 (KER)

Judgment :- Balanarayana Marar, J. At the instance of the Southern Railway, Government of Kerala acquired lands in Sy. Nos. 75,76/1 and 459/17 of Pallipad Village for laying an approach road from Haripad Railway Station to the National Highway. Notification under S.4 of the Land Acquisition Act, 1894 (for short, the act) was issued on 15-5-1985. Consequent to that notification possession of 3 cents of land in Sy. No. 76/1 owned and possessed by one Lalitha Bai and an area of 1 cent in Sy. No. 75 owned and possessed by one Kochunnunni were taken possession by the Government and handed over to the Southern Railway Possession of an area of 31.10 acres in Sy. No. 459/17 owned and possessed by the Travancore Devaswom Board was also taken. While the Railway was making preparations for laying the road, a suit was filed before Munsiff's Court, Haripad as O.S.275/1990 by a worshipper of Karimpalil Koyikkal Kottayam Bhagavathi Kshethram objecting to the laying of the road through.the temple property. The request for a temporary injunction to restrain the Railway from proceeding with the laying of the road ' was resisted by the Railway. No interim injunction was granted by the court. 2. Thereafter another devotee of the temple moved this Court by C.M.P. 774/ 1992 seeking various reliefs including a mandatory direction to the Railway from interfering with and altering the properties belonging to the temple, its land and buildings including the Gopuram. A petition for interim injunction was also moved by C.M.P. 773/1991. Therein request was made for issue of an interim order of injunction restraining the Railway and the Tahsildar, Land Acquisition (Railway) from implementing the proceedings in pursuance to the land acquisition notification including all steps to demolish the Gopuram to the temple. By order dated 8-4-1991 this Court held that the temple property should not be cut into two for the purpose of the approach road. The Railway had since then changed the alignment and the approach road was laid through an alternate' route. 3. By order dated 8-4-1991 this Court held that the temple property should not be cut into two for the purpose of the approach road. The Railway had since then changed the alignment and the approach road was laid through an alternate' route. 3. Complaining of this action on the part of the Railway 14 residents of Haripad filed O.P. 3791/1992 seeking a declaration that the Railway is bound to construct an approach road connecting the National Highway and Haripad Railway Station through the shortest route possible, and to issue a writ of mandamus to direct them to complete the construction at the earliest and not to incur further expenditure on the proposed alternate approach road. They also sought a direction to respondents 1 and 2 not to fill up the temple pond of karimpalil Koyikkal Kottaram Bhagavathi Temple either wholly or partially. Since then the Southern Railway by letter dated 13-5-1992 informed the Special Tahsildar (LA) for Railway, Alappuzha that the proposed acquisition of additional land for the approach road connecting the National Highway through the Devaswom land need not be proceeded further. In continuation of that letter the Special Tahsildar was further informed by another letter dated 14-5-1992 to make necessary arrangements to handover the land to the concerned parties namely, the Travancore Devaswom Board and the private parties at the earliest. It is thereafter that two of the owners whose properties were acquired and possession taken by the Government moved this Court by O.P. 4055/1993 seeking a writ of mandamus directing the respondents therein viz. the Special Tahsildar, the Executive Engineer (Construction), Southern Railway, General Manager, Southern Railway and the Union of India represented by its Secretary, Ministry of Railways to pass an award and to pay compensation. Direction is also sought to command respondents to construct the approach road connecting the National Highway and Haripad Railway Station through the properties including the properties of petitioners acquired for that purpose. 4. Inthemeantimesomeofthedevoteesandworshippersofthetemplesentaletter to this Court complaining of the acquisition of a portion of temple land and construction of buildings in the temple property by the Devaswom Board. That was registered as TDB 12/1991. 4. Inthemeantimesomeofthedevoteesandworshippersofthetemplesentaletter to this Court complaining of the acquisition of a portion of temple land and construction of buildings in the temple property by the Devaswom Board. That was registered as TDB 12/1991. Therein the Devaswom Board filed C.M.P, 1532/93 for an order to set aside the notice sent by the Southern Railway on 14-5-1992 to the Special Tahsildar, Land Acquisition for Railways, Alappuzha requesting him to make arrangements to hand back possession to the persons from whom land was taken. All these proceedings therefore relate to the acquisition of land in connection with the laying of the approach road from Haripad Railway Station to the National Highway and in particular to the acquisition of a portion of the land belonging to the temple. 5. On behalf of the Railway counter affidavit was filed in all these proceedings. Identical contentions are raised therein. It is admitted that acquisition proceedings were initiated for acquiring an extent of 31.76 acres of land for constructing an approach road from Haripad Railway Station to the National Highway. It is contended that the said acquisition proceedings and proposal for laying the approach road had to be dropped later. The circumstances leading to the proposal in the said acquisition and the abandonment of that project are mentioned in detail in the counter affidavit filed on behalf of respondents 2 to 4 in O.P. 4055/1993. The same contentions are reiterated in the counter affidavit filed in the other proceedings also. The contentions are summarised in the following paragraph. 6. The National Highway goes through the western side of Haripad Railway, Station. There is another road called Pallipad-Haripad road going through the northern side of the Railway Station. The advantage of adopting the first course was that there was already a 7.5 metre wide road up to more than half the distance between the Railway Station and Pallipad-Haripad Road. Not only that the remaining length of the road to be formed was only about 300 metres in length and most part of it was through Railway land. If the second course is to be adopted, a straight approach road was possible only by acquiring large extent of Devaswom properties. In between the Devaswom property and the National Highway there is a narrow Panchayat road which can be widened. There was request from a section of the local public to adopt the second course. If the second course is to be adopted, a straight approach road was possible only by acquiring large extent of Devaswom properties. In between the Devaswom property and the National Highway there is a narrow Panchayat road which can be widened. There was request from a section of the local public to adopt the second course. The Devaswom authorities have also agreed for acquisition of about 29 acres of Devaswom land. It was under these circumstances that an area of 31.76 acres of land was acquired and the Railway made preparations for laying the road. In the meantime the Panchayat had also intimated the Railway that the Panchayat road would be surrendered for the purpose of the approach road. Possession of the Panchayat road was not taken by the Railway. But possession of the acquired land was taken by the government and handed over to the Railway. While steps were being taken to lay the road, suits were filed before Munsiff's Court, Haripad and proceedings were initiated before this Court. This Court passed an order in C.M.P.774/1991 disallowing the construction of approach road through Devaswom property as also the acquisition of Devaswom property as originally proposed. As the acquisition and construction of the approach road through the Devaswom property was quashed and not permitted by this Court, it has become necessary to abandon the entire scheme and acquisition in question. It was in these circumstances that the Special Tahsildar was informed not to proceed with the matter and to hand back possession of the property to the persons concerned. Regarding the direction sought for to lay the road along the route originally proposed, it is contended that the Railway had already constructed an approach road from the Railway Station to Pallipad-Haripad road and no further approach road is necessary as far as the Railway Administration is concerned. It is also contended that the alternate suggestion of constructing approach road by widening the existing Panchayat road on the southern side of Devaswom property was more expensive and time consuming. The Railway was not in a position to lay the road as per the original proposal since they were validly and legally prevented from proceeding with the acquisition of the properties in question as per valid orders of this Court. 7. The Railway was not in a position to lay the road as per the original proposal since they were validly and legally prevented from proceeding with the acquisition of the properties in question as per valid orders of this Court. 7. The 1st respondent in O.P. 4055/1993, the Special Tahsildar, Land Acquisition for Railways, Alappuzha in his counter affidavit stated that the lands with all improvements were handed over to the Railway authorities and that the acquisition proceedings are in progress and it has reached the stage of preparing valuation statements. It was at that stage that the Railway intimated him that they had constructed a new approach road and the proposal for acquisition through Devaswom land need not be proceeded further. They had also requested that the acquisition steps may be withdrawn at the cost of the Railway Department. First respondent further stated that he has no hesitation to pass an award and complete the acquisition proceedings which, according to him, could not be completed due to the intimation received from Railway Authorities. 8. The Executive Officer of Pallipad Panchayat was impleaded as Addl. 5th respondent in O.P. 3791/1992. In the counter affidavit filed by the 5th respondent it is stated that Panchayat had decided to give the road to the Southern Railway free of cost and that Railway is bound to maintain the road after widening it along the property acquired for that purpose. 9. Since these O.Ps. and the TDB case are connected matters, they were heard together and are being disposed of by this common judgment. 10. Heard counsel for the petitioners, Government Pleader for the 1st respondent in O.P. 4055/1993 and Sri. M.C. Cherian, Standing counsel for the Railway. 11. The following points arise for consideration in these proceedings: 1. Whether Government car withdraw from the acquisition after taking possession of the property? 21s the land acquisition officer bound to pass an award in spite of the request of the Railway to withdraw the acquisition proceedings? 3. Whether a direction can be issued to the Railways to lay a road along the way originally proposed by them at the time of acquisition of land? Points I and 2. 12. In pursuance to the notification issued under S.4 of the Act Government had taken possession of the land and the same was handed over to Southern Railway. 3. Whether a direction can be issued to the Railways to lay a road along the way originally proposed by them at the time of acquisition of land? Points I and 2. 12. In pursuance to the notification issued under S.4 of the Act Government had taken possession of the land and the same was handed over to Southern Railway. The land acquisition officer has now been informed not to proceed with the acquisition and to hand over the properties to the persons concerned. Petitioners in O.P.4055/1993 want an award to be passed and respondents to be directed to pay compensation. The stand of the Railway appears to be that a road could not be laid along the route originally proposed in view of the order of this Court in C.M.P. 775/91. That necessitated laying of the road through an alternate route which has already been completed. No further approach road is required at present. The contention of the Railway appears to be that the alternate route has to be found out since there was no possibility of laying the road through Devaswom land. This, according to the counter affidavit, was due to the quashing of the acquisition and construction of the approach road through Devaswom property. At another place in the counter affidavit it is averred that this Court had disallowed the construction of approach road through the Devaswom property as well as the acquisition of Devaswom property as originally proposed. These contentions are raised without understanding the purport of the order of this Court rendered on 8-4-1991 in C.M.P. 774/1991 and C.M.P. 773/1991 in C.M.P. 3078/1990. This Court has only said that the temple property should not be cut into two for the purpose of the approach road. This has been further made clear in the last sentence of the order. What was sought to be prevented is only cutting of the temple property into two different halves. This court did not either quash the acquisition and construction of the approach road through the Devaswom property as stated in the counter affidavit, nor was the construction of the approach road through the Devaswom property disallowed by this Court. We are constrained to say that respondents 2 to 4 in O.P. 4055/1993 has misunderstood the contents of the order passed by this Court and have misinterpreted the same. We leave the matter there. 13. We are constrained to say that respondents 2 to 4 in O.P. 4055/1993 has misunderstood the contents of the order passed by this Court and have misinterpreted the same. We leave the matter there. 13. The question to be considered is whether the Government is at liberty to withdraw from the acquisition. The law on this aspect is stated by Halsbury in paragraph 104 at page 66 of Vol.10, 3rd Edn. of Halsbury's Laws of England thus: "Neither party can get rid of the obligation imposed by a notice to treat without the consent of the other party otherwise than by withdrawal of the notice in accordance with a statutory power so to do". It is further stated that this power to withdraw after the failure of the Claimant to deliver a proper notice of claim is not exercisable after the authority has entered into possession of the land by virtue of the notice, to treat, but so long as the authority is entitled to withdraw under this power, it cannot be compelled to take the lands or pay any compensation in respect of the taking. 14. The statutory power is granted under S.48 of the Act. Sub-sec.(1) of that section reads: "Except in the case provided for in S.36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken". 15. This section recognizes the right of the Government to withdraw from the acquisition of any land. But the section puts a ban on the power of the government to withdraw in cases where (1) possession was taken, and (2) where the case is covered by the provisions of S.36 of the Act. A special power is therefore conferred on the Government to withdraw from the acquisition without cancelling the notifications under Ss.4 and 6 provided possession of the land was not taken in pursuance to the notification. In other words, in a case where possession has been taken, Government is not at liberty to withdraw from the acquisition. 16. A special power is therefore conferred on the Government to withdraw from the acquisition without cancelling the notifications under Ss.4 and 6 provided possession of the land was not taken in pursuance to the notification. In other words, in a case where possession has been taken, Government is not at liberty to withdraw from the acquisition. 16. The Supreme Court in Lt.Governor of Himachal Pradesh v. Avinash Sharma, (1971) 1 SCR 413, held: "After possession has been taken pursuant to a notification under S.17(1) the land is vested in the Government and the notification cannot be cancelled under S.21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under S.48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under S.17(1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification". 17. The matter was again considered by the Supreme Court in Balwant Narayan Bhagde v. M.D. Bhagwat, (1976) 1 SCC 700, wherein it was held: "It is well-settled that after possession of the land forming the subject-matter of acquisition has been taken in accordance with S.16 or S.17(1) of the Act, the land vests in the Government. Consequently the Government or any authority is not at liberty to withdraw from acquisition of any land, of which possession has been taken". 18. The position therefore is settled that when possession has been taken by the Government in pursuance to the notification either in accordance with S.16 or invoking the urgent clause in S.17(1) of the Act, the Government is not at liberty to withdraw from acquisition of any land. This Court also has taken that view inlttan v. State of Kerala (1987 (2) KLT 23). Possession having been taken by the Government and the same handed over to the Railway, it is not open to the Railway or the Government to withdraw from the acquisition of the land. This Court also has taken that view inlttan v. State of Kerala (1987 (2) KLT 23). Possession having been taken by the Government and the same handed over to the Railway, it is not open to the Railway or the Government to withdraw from the acquisition of the land. The request of the Railway to the land acquisition officer not to proceed with the acquisition and to hand back the properties to the persons concerned is therefore against the provision contained in S.48 of the Act and the law laid down by the Supreme Court. The notices issued by the Railway, which are Exts.P3 and P4 in O.P.4055/1993 are liable to be quashed. We do so. 19. Sri Cherian, learned counsel for the Railway, has raised a contention that the acquisition proceedings initiated by the notification dated 19-5-1989 do not now survive since more than four years have elapsed since then. Attention is drawn to S.11-A of the Act which directs the Collector to make an award within a period of two years from the date of the publication of the declaration under S.6. If no award is made within that period, the entire proceedings for acquisition of the land shall lapse. Since an award has not been passed within the time provided for in S.11-A, the proceedings for acquisition lapsed, according to counsel. He has also cited a Division Bench decision of the Madras High Court reported in 1990 (2) KLT SN 7, Sargunam v. State of Tamil Nadu. The Madras High Court observed that it is obligatory on the part of the Collector to pass an award within a period of two years from the date of publication of S.6 declaration irrespective of the nature of acquisition proceeding initiated by the Government. It is further observed that there is no dichotomy made in S.11-A relating to acquisition under urgency provisions and non-urgency provisions. It was held that even if vesting takes place under S.17(1) of the Act, the entire acquisition proceedings shall lapse when there is a failure to adhere to the time limit fixed under S.11-A resulting in re-vesting of the land. 20. The dispute is now beyond controversy in view of the decision of the Supreme Court in Satendrd Prasadjain & Ors. v. State of U.P. & Ors. UT 1993 (5) SC 385). In para. 20. The dispute is now beyond controversy in view of the decision of the Supreme Court in Satendrd Prasadjain & Ors. v. State of U.P. & Ors. UT 1993 (5) SC 385). In para. 15 at page 389 the Supreme Court observed that ordinarily the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof had been made under S.11. On taking possession the land vests in the Government. S.16 of the Act provides for this. It is further observed that the provisions of S.11-A are initiated to benefit the landowner and to ensure that the award is made within a period of two years from the date of S.6 declaration. When the Government fails to make an award within that period, the land has not still vested in the Government and the title remains with the owner. By virtue of the provision in S.11-A, the acquisition proceedings lapse. The Supreme Court further held: "When S.17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under S.11 and thereupon the owner is divested of the title to the land which is vested in the government. S.17(1) states so in unmistakable terms. Clearly, S.11-A can have no application to cases of acquisitions under S.17 because the lands have already vested in the government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner. " 21. The same view has been adopted by this Court in two decisions: (1) Thomas v. State of Kerala (1988 (1) KLT 438 and (2) Mary Philip v. K.S.H.B. (1992 (2) KLT 420). 22. In the light of the principles laid down by the Supreme Court, the contention that the acquisition proceedings had lapsed is unsustainable. The authorities are to continue the acquisition proceedings and an award has to be passed determining the compensation payable to the persons from whom possession of the land was taken. Points 1 and 2 answered accordingly. Point NO 23. Petitioners in O.P.3791/1992 who are residents of Haripad want the approach road to be laid along the route originally proposed and in respect of which properties were acquired by the Government. Such a relief is asked for by the petitioners in O.P.4055/1933 also. Points 1 and 2 answered accordingly. Point NO 23. Petitioners in O.P.3791/1992 who are residents of Haripad want the approach road to be laid along the route originally proposed and in respect of which properties were acquired by the Government. Such a relief is asked for by the petitioners in O.P.4055/1933 also. The contention of the learned counsel appearing for the petitioners in these two original petitions is that the Railway has a public duty to lay the road as proposed by them, the land having been acquired for that purpose. Relying on the decision in State of Himachal Pradesh and another v. Umed Ram Sharma and others (AIR 1986 SC 847) it is urged that affirmative action in the form of some remedial measures in public interest is permissible by means of judicial directions. In that case the High Court of Himachal Pradesh directed the Superintending Engineer of P.W.D. to proceed with the construction of a road and to make an application to the State Government demanding additional sum of Rs.50000/- to be sanctioned for the construction of the said road. It was further directed that the State Government should favourably consider the demand of the Superintending Engineer. The case was thereafter listed to a particular date and the Superintending Engineer was directed to place on the record a report with regard to the progress made during the intervening period. The Supreme Court, while observing that there was no need for the High Court to direct that the matter should be listed again, held that the High Court has not exceeded its parameter in reviewing the administrative action. 24. It is the contention of the counsel that petitioners have a fundamental right to have the road laid through the route originally proposed connecting Haripad Railway Station with the National Highway. The Railway has a statutory duty to provide that amenity, according to counsel and attention is drawn to S.51 of the Indian Railway Act, 1890 which confers powers on any Railway Company to construct and maintain roads for the accommodation of traffic passing to or from the railway among other things. The new Railways Act of 1989 does not contain an identical provision, but the power to execute all necessary works is conferred on the Railway Administration by S.11 of the Act. The new Railways Act of 1989 does not contain an identical provision, but the power to execute all necessary works is conferred on the Railway Administration by S.11 of the Act. The Railway Administration may, for the purposes of constructing and maintaining a railway, make or construct roads among other things enumerated in that section. The power of the Railway Administration to make or construct a road for the purposes of constructing or maintaining a railway is not in dispute. The question to be considered in these petitions is whether a mandamus can be issued to the Railway directing them to lay a road along the property acquired by the Government for that purpose. 25. The acquisition having been made for the purpose of laying a road connecting the Railway Station to the National Highway, Railway has a duty, according to counsel, to lay the road along the same route. The contention of the Railway appears to be that the approach road had already been laid along another route in view of the impossibility in making a road through the Devaswom land. This excuse on the part of the Railway is not justified since this Court has only directed the Railway not to lay a road through the temple property by dividing it into two. There was no interdiction against laying a road along the Devaswom property and even over a portion of the temple property. What was sought to be prevented is only demolition of the buildings situated in the temple property and dissection of the property into two. The Railway could have made a road along the extremity of the property and through the other Devaswom land acquired for that purpose. We have already observed that the Railway had misunderstood and misinterpreted the direction given by this Court in C.M.P.774/1991. The stand of the Railway at present is that an alternate repute had to be found out on account of the impossibility of laying a road through the original route proposed by them for which purpose properties were acquired. It is for that reason that they requested the Special Tahsildar, Land Acquisition, not to proceed with the land acquisition proceedings and to hand back the properties to the persons from whom possession was taken. As matters stand at present, it may appear that the purpose for which the acquisition was made has ceased to exist. It is for that reason that they requested the Special Tahsildar, Land Acquisition, not to proceed with the land acquisition proceedings and to hand back the properties to the persons from whom possession was taken. As matters stand at present, it may appear that the purpose for which the acquisition was made has ceased to exist. But the proceedings had not been completed yet by ascertaining the compensation and by passing an award. In view of our direction in this judgment to complete the land acquisition proceedings, an award has to be passed by the land acquisition officer determining the compensation payable. It is then for the Railway to decide whether land can be utilised for the purpose for which it was acquired viz. laying the approach road connecting the Haripad Railway Station with the National Highway. If the purpose of the acquisition has ceased to exist on account of another road having been laid by the Railway, it is for them to consider whether the land can be utilised for any other public purpose. Anyway, it is premature to say that the land will not be utilised for any public purpose. The question whether the acquired lands are to be returned to the concerned parties does not arise for consideration at present since no such request has been made by any of the owners. On the other hand, they are eager to get an award determining the- compensation. In the circumstances the reliefs asked for in O.P.3791/ 1992 and the second relief asked for in O.P.4055/1993 are to be denied to petitioners. For the aforesaid reasons O.P.4055/1993 is allowed in part and 1st respondent therein is directed to pass an award and to pay compensation in accordance with law for the land taken possession from the petitioners pursuant to the land acquisition proceedings for the purpose of constructing an approach road from the National Highway to Haripad Railway Station. We make it clear that this direction is subject to the observations of this Court in the order dt.8-4-1991 rendered in, C.M.P. Nos. 774/1991 and 773/1991 in C.M.P.3078/1990.O.P.3791/1992 is dismissed. For the same reasons we decline to grant the second relief asked for in O.P.4055/1993. The complaint T.D.B. 12/1991 is rejected. Consequent to the rejection of that complaint C.M. P. 1532/93 filed by the Travancore Devaswom Board is also dismissed. The parties are directed to suffer costs. 774/1991 and 773/1991 in C.M.P.3078/1990.O.P.3791/1992 is dismissed. For the same reasons we decline to grant the second relief asked for in O.P.4055/1993. The complaint T.D.B. 12/1991 is rejected. Consequent to the rejection of that complaint C.M. P. 1532/93 filed by the Travancore Devaswom Board is also dismissed. The parties are directed to suffer costs. In view of the direction no clarification of the order in C.M.P.774/1991 and C.M,P.773/1991 is required. C.M.P.991/1992 is dismissed. Immediately after the judgment was pronounced in the above case, counsel for the petitioners in O.P.No. 3791 of 1992 prayed for the grant of a certificate to appeal to the Supreme Court under Art.134-A of the Constitution of India. We are not satisfied that any substantial question of law is involved in the above case. We are also of the opinion that there is no need for the question to be decided by the Supreme Court. We reject the prayer.