Judgment :- 1. According to the writ petitioner, 67 cents of land comprised in Survey No. 293/2, Manamadurai Village, Sivaganga Taluk, belonged to her grand-father late Muthuswamy Pillai who died in the year 1939. She is the only heir of that person. During the year 1920, there was a land acquisition proceeding whereunder the land was taken possession by the first and second respondents for the requirement of Railways. Though the land acquisition notification pertained only to nine cents of land, the Government took possession of the entire 67 cents. An award was also passed only for nine cents of land for a sum of Rs. 1,666/-and 20 paise. Muthusamy Pillai died in the year 1939 and his son Sonamuthu Pillai left for Rangoon and came to India only in the year 1960 and he died in the year 1968. The petitioners father Thangavelu Pillai predeceased his father Sonamuthu Pillai in the year 1944 itself when the writ petitioner was only one year old. According to the petitioner, her widowed mother was employed in Khadi Craft and as she was holding a transferable post, she could not bestow her attention to the family affairs. After the death of Sonamuthu Pillai, the petitioners mother had asked one of their close relatives to look after the lands and that thereafter they had no personal knowledge of the properties, and with the result, it was only subsequently it was known that an extent of 58 cents belonging to the petitioners family had been erroneously takenover by the Government and handedover to the Railways for which no compensation was also paid. As soon as the facts came to her knowledge that the land was classified as Railway Poramboke, the petitioner had been corresponding with the authorities from the year 1986 to retransfer the entry in her name, but she was being driven from pillar to post without any fruitful result. Therefore, she filed W.P. No. 10923 of 1989 for a writ of mandamus to direct the respondents to retransfer the title of the property. K. Venkataswami, J. as he then was, while disposing of the said writ petition by order dated 21.8.1989 directed the respondents to dispose of the petition filed by the petitioner within eight weeks from the date of receipt of the order. 2. According to the petitioner, no further orders were passed and hence, the present petition. K. Venkataswami, J. as he then was, while disposing of the said writ petition by order dated 21.8.1989 directed the respondents to dispose of the petition filed by the petitioner within eight weeks from the date of receipt of the order. 2. According to the petitioner, no further orders were passed and hence, the present petition. Apart from the facts stated above, she would state that the fourth respondent had taken the property in an auction held by the first respondent in 1944. Certain allegations are made to the effect that the then Correspondent of the 4th Respondent, Vellayan Chettiar played a vital role in bringing the land in Survey No. 293/2 for public auction and succeeded in setting up the then Revenue Inspector and has manipulated the records as if an auction had taken place. It is also further contended that she had appealed to the Collector requesting him to set aside the auction proceedings. She would also contend that the lands continued to be classified as Railway poramboke and hence the transfer in favour of the fourth respondent as a result of the auction, was null and void and that therefore, the sale has to be set aside, and the property be redelivered to the petitioner. The petitioner has also stated that a report was furnished by the Tahsildar, Sivaganga recommending the transfer of the land in favour of the petitioner. 3. With the result, the petitioner prayed for a writ of mandamus calling for the records of the Collector in R.Dis. 11725/44 dated 24.12.1944 relating to the land in question and to quash the sale in favour of the fourth respondent and to direct respondents 1 to 4 to redeliver the vacant land in Survey No. 293/2 of an extent of 58 cents or alternatively direct respondents 1 to 4 to pay compensation at the market rate of the land. 4. No counter-affidavit has been filed by first and second respondents in spite of several adjournments. A counter has been filed by the third respondent, the Southern Railway, Madurai, contending that an extent of 67 cents of land was acquired for the Railways and 59 cents were subsequently relinquished as Surplus. It is therefore, pleaded that the Railways had nothing to do with the disposal of the surplus land. 5. A counter has been filed by the third respondent, the Southern Railway, Madurai, contending that an extent of 67 cents of land was acquired for the Railways and 59 cents were subsequently relinquished as Surplus. It is therefore, pleaded that the Railways had nothing to do with the disposal of the surplus land. 5. A counter-affidavit by fourth respondent was also filed by the Secretary of the Vellayan Chettiar Higher Secondary School, Manamadurai. It is not necessary to extract all the averments contained in the said counter except for pointing out that according to the respondent, the land belonged to the Government and in the public auction held by the Revenue Inspector on 3.10.1944, they had purchased the same and the sale was confirmed on 24.12.1944. The School had also objected to the recommendation of the Tahsildar in his report. I have also gone through the report of the Tahsildar and the file produced before me. 6. The facts as can be gathered from the pleadings and the file are as follows:— In 1920 a land measuring about 9 cents in the survey number was notified for acquisition and an award was also passed only in respect of 9 cents. But the Revenue authorities had erroneously taken possession of the entire 67 cents and handed over to the Railways. The entire extent came to be classified as Railway land in the Revenue Records. The Railways returned the extent of 58 cents of land in 1944 to the State as surplus land whereupon the State Government alienated the extent of 58 cents of land in favour of the fourth respondent pursuant to a public auction during the same year. Even after the purchase by the fourth respondent, the entry in the Revenue records continued to be in the name of Railways and subsequently, the fourth respondent took steps to have their name entered in the register. 7. The Tahsildar in his report after enquiry dated 7.5.1990 does not dispute the fact that only 9 cents of land were acquired as per the notification, but that the entire extent had been classified as Railway poramboke and had been subsequently sold in auction in 1944 to the fourth respondent. 7. The Tahsildar in his report after enquiry dated 7.5.1990 does not dispute the fact that only 9 cents of land were acquired as per the notification, but that the entire extent had been classified as Railway poramboke and had been subsequently sold in auction in 1944 to the fourth respondent. The Tahsildar has also ultimately recommended that in view of the circumstances as mentioned in the report, the patta granted in favour of the fourth respondent may be cancelled and the patta be granted in favour of the writ petitioner herein. 8. In this background in order to decide the right of the petitioner to obtain any relief, it is necessary to examine as to the nature of the rights acquired by the Government over the land takenover by them in excess of the notification and as to whether Section 16 of the Land Acquisition Act would create any inviolable right in favour of the Government. Section 16 of the Land Acquisition Act is as follows:— “16. Power to take possession - When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon (vest absolutely in the Government), free from all encumbrances.” Except for an amendment in 1950, by which the expression “Crown” as it original stood came to be substituted as “Government” in Section 16, there is no change in the law either prior to or after the coming into force of the Constitution. There can be no difficulty in applying the Section in respect of lands covered under the notification for acquisition. But in cases of lands which are not covered by a proper notification, which are very rare, the legal effect is best described in the following rulings. In 17 B.L.R. 192 ( Bhagwandas and Nagindas v. Special Land Acquisition Officer ) a Division Bench of the Bombay High Court dealt with a case arising under Section 49(1) of the Land Acquisition Act where a portion of the premises was sought to be acquired. The Collector informed the owners that he accepted their statement as a declaration of wish of the parties that a portion of the premises should be acquired. Contrary to the said undertaking the entire premises was acquired. The Court held that the entire action was contrary to law and whole proceedings beginning from the Collectors award was bad and must be set aside. Contrary to the said undertaking the entire premises was acquired. The Court held that the entire action was contrary to law and whole proceedings beginning from the Collectors award was bad and must be set aside. 9. In the judgment of the Privy Council reported in 18 I.L.R. Calcutta (P.C. 99) (Luchmeswar Singh v. DurbangaMunicipality) the Judicial Committee was dealing with a case of alienation of minors property under land acquisition proceedings. The waiver of compensation by the guardian was held to be illegal and the Privy Council held that no valid title was established as against the ward and on attaining majority he can recover the property as well as mesne profits. 10. In 11 (1907) C.W.N, 875 (Harish Chunder v. Secretary of State) a Division Bench of the Calcutta High Court was dealing with a case similar to the present case were the Collector had taken possession of the lands in excess of the notified extent. The Division Bench held as follows:— “The Collector cannot acquire or give possession of any land beyond the boundaries given in the declaration. If he does so, he commits an act of trespass. He has to find out the precise quantity of land notified for acquisition within specific boundaries, value the same under the provisions of the Act and give possession accordingly If the land acquired be for the Government purposes and if the Government takes possession of land beyond the limits prescribed by the declaration in excess of the area for which compensation is paid, it trespasses, on private land and is liable under the law of the Country. So is a Company, if the acquisition for its purposes.” 11. In A.I.R. 1961 Punjab, 507 (State of Punjab v. Madan Gopal), the learned single Judge of the Punjab High Court held that where the land acquired was more than what was notified the acquisition to the extent of what was specified in the notification would be valid and beyond that it would be unauthorised and no valid title will be conferred on the Government. 12. In (1926) 24 L.W. 513 (Ponnaiah v. Secretary of State) a Division Bench of this Court was concerned in an acquisition which was found to be mala fide and was intended for the purpose of benefiting a private person. 12. In (1926) 24 L.W. 513 (Ponnaiah v. Secretary of State) a Division Bench of this Court was concerned in an acquisition which was found to be mala fide and was intended for the purpose of benefiting a private person. It was held that the provision of the Land Acquisition Act cannot be made as a cloak for depriving the indefeasible right and enjoyment over the property by its owner and for attempting to obtain a transfer of title under the guise of a public purpose. 13. Therefore, to summarise the law as stated in the above rulings in cases where possession is taken by the Government in excess of the notified land, the proceedings at least in respect of the excess land would be void ab initio, illegal, unauthorised and cannot confer any title on the Government and in effect the Government would be a trespasser over the land. In the present case, when it was found that excess land has been taken possession of, the authorities ought to have immediately returned the land to the owner. Even in the case of a proper acquisition where the land is covered by notification, if the Government finds that they have excess land in their possession over and above their requirement, there is an obligation to return it to the original owner. Under English Law surplus or superfluous land will as a matter of right go back to the owner. But in India in view of Section 16 of the Land Acquisition Act, under which a vesting takes place in favour of the Government, the State is not precluded in using the excess land for some other public purpose. But once the Government contemplates to dispose of the excess land to third parties, the Government should give priority to the original owner. In the present case, and cases not covered under notification in respect of which the Government becomes a “trespasser”, the Government cannot convey any title and any purchaser from the Government also cannot get any valid title. 14. Therefore, I have no doubt, in my mind that the Government is duty bound to return the land to the owner from whom they have taken wrongful and illegal possession. The only defence that can be raised and was issued before me by the Government was, laches on the part of the petitioner. 14. Therefore, I have no doubt, in my mind that the Government is duty bound to return the land to the owner from whom they have taken wrongful and illegal possession. The only defence that can be raised and was issued before me by the Government was, laches on the part of the petitioner. The petitioner has expressed certain circumstances how the matter went unnoticed and when it came to be known, her mother was a widow and employed in a transferable job and hence could not pursue the matter and that from 1986 onwards she was representing before the Government, without any result. It may be that the reasons may not stand a strict scrutiny, but it is necessary to appreciate the plight of a citizen in 1920 and the owner and his family running about here and there including Rangoon to make a living and ultimately the matter came to the notice of the mother of the petitioner who is a widow and employed in some job etc. In the background of these facts the accepted general principle is that in fairness State should never plead limitation, except in cases where the Taxing statutes prescribes a bar for claiming refund of excess tax as envisaged in various fiscal legislations. In an action under fiscal statutes there is no absence of jurisdiction to pass an assessment order. But any error in computing the tax liability may entitle an assessee to claim refund, which is subjected to a period of limitation. In the present case, there is total absence of jurisdiction and the take over of the excess land is totally void and illegal. But any error in computing the tax liability may entitle an assessee to claim refund, which is subjected to a period of limitation. In the present case, there is total absence of jurisdiction and the take over of the excess land is totally void and illegal. In 1979 (4) S.C.C., 176 (Madras Port Trust v. Hymanshu International by its Proprietor), the Supreme Court held as follows:— “It is high time that Governments and Public Authorities adopt the practice of not relying upon the technical pleas for the purpose of defeating the legitimate claims of citizens and do what is fair and just to the citizen What we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless, of course, the claim is not well founded any by reason of delay in filing it, the evidence for the purpose of resisting the said claim has become unavoidable.” – In the present case, the facts are not in dispute, namely, that the notification covered only 9 cents of land and compensation was paid only for 9 cents, that an excess extent of 58 cents had been taken possession by the Government and that the same was auctioned in favour of the fourth respondent. Therefore these facts not being disputed, there is no necessity or want of further evidence so as to justify the State pleading laches on the part of the petitioner. 15. Further under Land Acquisition Act, the right to claim compensation at least is alive as long as no compensation is awarded under Section 12 of the Act and in the present case, there can be no doubt that there is no award in respect of the excess land. The Government has also derived benefit from the sale of the property and cannot be heard to refuse either to return the excess land or to pay just compensation, by pleading laches or limitation against a citizen who had been deprived of his property. Even the sovereign power of the State exercising the power of the “eminent domain” to takeover private lands for public use cannot come to the rescue of the State to plead that by virtue of the said power of vesting under Section 16 of the Land Acquisition Act, the property had become that of the State. Even the sovereign power of the State exercising the power of the “eminent domain” to takeover private lands for public use cannot come to the rescue of the State to plead that by virtue of the said power of vesting under Section 16 of the Land Acquisition Act, the property had become that of the State. The exercise of sovereign power is inter-twined and coupled with the obligation of the State to pay just compensation. Without payment of compensation there can be no valid exercise of the power of “eminent domain”. The Supreme Court in Coffee Board v. Commissioner of Commercial Tax ( 1988 (3) S.C.C. 263 , held that “eminent domain” is an essential attribute of sovereignty of every State and authorities are universal in support of the definition of eminent domain as the power of the sovereign to take property for public use without the owners consent upon making just compensation.” In the same judgment the following passage from Thayers Cases on Constitutional Law, has been extracted and relied upon:— “But while obligation (to make compensation) is thus well established and clear let it be particularly noticed upon what ground it stands, viz. , upon the natural rights of the individual. On the other hand, the right of the State to take springs from a different source, viz., a necessity of government. These two, therefore, have not the same origin; they do not come, for instance, from any implied contract between the State and the individual, that the former shall have the property, if it will make compensation; the right is no mere right of pre-emption, and it has no condition of precedent or subsequent. But, there is a right to take and attach to it as an incident, an obligation to make compensation; this latter, morally speaking follows the other, indeed like a shadow, but it is yet distinct from it, and flows from another source.” 16. Therefore, in the absence of payment of compensation, the principle of law based on “eminent domain” cannot be invoked. Firstly, there is no proper invocation of the said power at all in the absence of a notification covering the land taken possession of and hence the takeover of the excess land is void. Therefore, in the absence of payment of compensation, the principle of law based on “eminent domain” cannot be invoked. Firstly, there is no proper invocation of the said power at all in the absence of a notification covering the land taken possession of and hence the takeover of the excess land is void. Secondly, even if it be assumed that the sovereign power and the vesting under Section 16 of the Land Acquisition Act can cure the illegality, there is no proper exercise of the power in the absence of payment of just compensation. 17. The above conclusion also naturally leads to the position that the transfer of property in favour of the fourth respondent is also illegal and there was no valid title in the Government to have conveyed to the fourth respondent. The petitioner had also alleged lack of bona fides in the auction sale in favour of the fourth respondent and has referred to certain circumstances including Tahsildars report dated 7.5.1990 and the fact that as against compensation of Rs. 1,666.20 fixed in the year 1920 for only an extent of 9 cents, the Government chose to part away with 58 cents of land for Rs. 500/-only, in 1944 and that therefore, there has been a collusion between the Revenue Authorities and the auction purchasers. These allegations are of course, denied by the respondents. But this Court has to deal with the said allegations in a practical manner. For an event which took place 54 years ago, there is no one alive who was directly concerned, with the facts on both sides. Therefore, any enquiry as regards the bona fides of the auction would be only a futile post-mortem. 18. Now coming to the issue of providing a relief to the petitioner, the request of the petitioner for redelivery of the property is certainly not capable of implementation. The fact remains, rightly or wrongly, the fourth respondent had been put in possession of the property since 1944. 19. Therefore, the Government has to either to assign comparable plot of land in the same or similar area within Manamadurai of approximately the same extent or in the alternative to pay just compensation which should reflect the present market value of the extent. Learned Special Government Pleader has informed the Court that the guidelines value as fixed by the Revenue authorities for the Survey Number in question is Rs. Learned Special Government Pleader has informed the Court that the guidelines value as fixed by the Revenue authorities for the Survey Number in question is Rs. 25.60 per square feet or Rs. 11,16,160/- per acre. The place is situate in a town area of a Taluk Headquarters and therefore, the guideline value thus fixed cannot be said to be higher. In fact, the fixation of the guideline value in moffusil areas other than City Municipal Corporations, is always on the lesser side of the real market value. Therefore, calculated on the above basis (Rs. 26/- per square feet) for 58 cents of land (25265 Sq. feet) the value of the land would be Rs. 6,56,890/-. Considering the fact that if not the petitioner herein, at least her predecessors had not sought to enforce their rights at the proper time and have allowed the present state of affairs to continue for 78 years and that the State cannot also be burdened heavily even though they have acted illegally. I am inclined to hold that the ends of justice would be met by fixing only half of the guideline value which works out to approximately Rs. 3.25 lakhs. 20. With the result there will be a mandamus directing respondents 1 and 2 either to allot a land of an approximate extent of 58 cents of land in the same area or any area comparable to Survey No. 292/3/2 of Manamadurai in favour of the petitioner herein or in the alternative to pay a compensation of Rs. 3.25 lakhs to the petitioner for the wrongful dispossession of the land from the family of the petitioner. If respondents 1 and 2 are of the opinion that the cost of the land has to be recovered either from the third respondent or from the fourth respondent, or both for any reason it would be a separate issue and cause of action as between themselves. The rights of the petitioner to obtain compensation from the acquiring authority, namely respondents 1 and 2, are independent and hence enforceable as against respondents 1 and 2. 21. Consequently, the above writ petition is allowed in terms of the observations made in the previous paragraph. No costs.