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2012 DIGILAW 521 (MAD)

Velappa Gounder v. Special Tahsildar

2012-02-01

V.PERIYA KARUPPIAH

body2012
JUDGMENT 1. This appeal is directed against the judgment and decree made in A.S.No.95 of 2001 dated 02.08.2001 in dismissing the appeal preferred against the judgment and decree of the trial court passed in O.S.No.208 of 1999 dated 13.12.2000 in dismissing the suit. 2. The plaintiffs are the appellants and the defendants are the respondents in this appeal. 3. The case of the plaintiffs before the trial court would be thus:- The plaintiffs were the owners of lands in R.S.No.13/2A, 13/2C, 13/2D, 13/3A of Muthampalayam Village, Erode Taluk. The Government acquired an extent of 1.41.5 Hectares of land in the said lands under L.A.No.8/85 for Adi Dravida Welfare Scheme. The first defendant conducted an enquiry on 11.07.1990 for the purpose of passing of award for payment of compensation. The plaintiffs appeared for the said enquiry and submitted that the award amount was very low and unreasonable. The plaintiffs demanded the Enquiring Authority to refer the dispute, under Section 18 of the Land Acquisition Act, to the court of Sub Judge, Erode for determination of the market value for payment of appropriate compensation to the plaintiffs. The defendants failed to refer the above dispute to the court of Sub Judge, Erode, under Section 18 of the Land Acquisition Act. Hence, the plaintiffs caused to issue a notice on 19.07.1995 requesting the defendants to refer the matter to the said Court. The defendants, though have received the said notice on 20.07.1995, did not take any steps to adopt the said procedure. The personal approaches of the plaintiffs with the authorities concerned have also become futile exercise. Section 80 of CPC notice was issued on 20.10.1997 calling upon the defendants to refer the dispute to the Sub Court, Erode and the defendants have not responded to the same. The Land Acquisition Authorities have not fixed the real value of the land acquired from the plaintiffs. Therefore, it is just to refer the dispute to the Sub Court to determine the correct compensation. The defendants are bound, under law, to refer the dispute to the Court. Hence, this suit for mandatory injunction. 4. The contentions raised by the first defendant adopted by the second defendant would be thus:- The suit is neither just nor maintainable either in law or on facts. The defendants are bound, under law, to refer the dispute to the Court. Hence, this suit for mandatory injunction. 4. The contentions raised by the first defendant adopted by the second defendant would be thus:- The suit is neither just nor maintainable either in law or on facts. It is true that the plaintiffs were the owners of lands in R.S.No.13/2A, 13/2C, 13/2D, 13/3A of Muthampalayam Village, Erode Taluk and the Government acquired an extent of 1.41.5 hectares of land in the above fields in L.A.No.8/85 for Adi Dravidar Welfare Scheme. It is true that the first defendant conducted enquiry on 11.07.1990 for passing award. During award enquiry, the first plaintiff alone appeared in person and received the compensation. The plaintiffs 2 and 3 did not appear. After complying all formalities, the Land Acquisition Officer passed an award on 27.08.1991 vide award No.14/91 in L.A.No.8/85. Meanwhile as per the orders passed by the High Court, Chennai in W.P.No.10466 of 1990 dated 19.10.1990 notice was sent to the minor son of the second plaintiff on 11.12.1990. During enquiry under Section 5(A) of the Land Acquisition Act, land owners gave consent to acquire the lands on 21.01.1992. The award enquiry under Section 11 of the Land Acquisition Act was conducted by the first defendant. On that date, the land owners in R.S.Nos.13/2A and 13/2B did not appear. On 29.01.1992, they gave their written consent to acquire the lands and received the compensation without protest. Therefore, the award was passed on 20.03.1992 vide award No.1/92 in L.A.No.8/85. The defendants submit as per Section 18(2) of the Land Acquisition Act land owners who have not accepted the award may, by written application to the Collector, request that the matter be referred by Collector for determination of market value by court within six weeks from the date of award. But the plaintiffs did not prefer to give their request in writing to the Collector within six weeks from the date of award, when the compensation is received under protest. Valid reference is a pre-condition for civil court to adjudicate the objection raised in the reference application. As per section 52 of the Land Acquisition Act no suit or other proceedings shall be commenced or prosecuted against any person for anything done in pursuance of this Act. This suit is not maintainable. There is no cause of action. This suit is barred by limitation. As per section 52 of the Land Acquisition Act no suit or other proceedings shall be commenced or prosecuted against any person for anything done in pursuance of this Act. This suit is not maintainable. There is no cause of action. This suit is barred by limitation. Hence, the suit is liable to be dismissed. 5. The trial court had framed necessary issues and an additional issue and entered trial. On appraising the evidence adduced before it, it came to the conclusion of dismissing the suit with costs. 6. Aggrieved by the said judgment and decree passed by the trial court, the plaintiffs have preferred an appeal before the first appellate court in A.S.No.95 of 2001. The first appellate court heard the appeal and had dismissed the appeal by confirming the judgment and decree passed by the trial court. The plaintiffs, aggrieved by the judgment and decree of the first appellate court, have challenged the same, in the present Second Appeal. 7. On admission, this Court formulated the following questions of law, for consideration in the Second Appeal:- "i) Have not both the courts below committed an error of law in holding that written application was not sent under Section 18 of the Land Acquisition Act, thereby the appellants are not entitled for reference of the award to the civil court ? ii) Have not both the courts below committed an error of law not considering the judgment reported in 1992 (I) LW 576 and 1999 (III) MLJ 265 ? iii) Have not the courts below committed an error of law in not considering the aspect of the settled principles of Section 18 of the Land Acquisition Act where the written endorsement of protest in receiving compensation is deemed to be a notice required under Section 18 of the Land Acquisition Act?" 8. Heard Mr.V.Bharathidasan, learned counsel for the appellants/plaintiffs and Mr.M.Venugopal, learned Special Government Pleader (C.S) appearing for the respondents. 9. The learned counsel for the appellants would submit in his argument that the appellants / plaintiffs are the claimants for the compensation awarded for the lands acquired in R.S.No.13/2A, 13/2C, 13/2D, 13/3A of Muthampalayam Village, Erode Taluk for an extent of 1.41.5 Hectares of land under L.A.No.8/85 of Adi Dravidar Welfare Scheme. After complying due formalities with respect to enquiries, an award was passed on 27.08.1991. After complying due formalities with respect to enquiries, an award was passed on 27.08.1991. However as per the order of this Court made in W.P.No.10466 of 1990 dated 19.10.1990 a further enquiry was ordered and was conducted and the award was passed on 20.03.1992 in award No.1/92 in L.A.No.8/85. He would further submit that the plaintiffs appealed before the authorities and demanded reference of the dispute under section 18 of the Land Acquisition Act to the court of Sub Judge, Erode for determining the market value of the plaintiffs' land. He would also submit that the notice sent by the plaintiffs on 19.07.1995 was not heeded and therefore, another notice under section 80 CPC was issued on 20.10.1997 calling for the defendants to refer the dispute to Sub Court, Erode in order to fix the market value. He would also submit that the defendants failed to do so and therefore, the suit was filed for seeking a mandatory injunction. He would further submit that the first appellate court had miserably failed to see that the proceedings were conducted under old Act, namely, Land Acquisition Act and therefore, reference could be made only under Section 18 of the Act and the proceedings under new Act, namely, Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978, are not applicable. He would further submit that the principles of law laid down in 1992 (I) LW 576 (The Deputy Collector, Revenue Karaikal and another ..vs.. Angelene Devadoss) and 1999(III) MLJ 265 (M.P.Palani and others .. vs.. State of Tamil Nadu and others) were not considered by the first appellate court to see that the oral protest would be sufficient for being referred to the Sub Court and therefore, the judgment and decree passed by the first appellate court in confirming the judgment and decree passed by the trial court is not in accordance with law. He would further submit that the provisions of Section 18 of the Land Acquisition Act is squarely applicable and therefore, mandatory injunction may be granted against the respondents, directing them to refer the award for fixing the market value as per Section 18(2) of the Land Acquisition Act. 10. He would further submit that the provisions of Section 18 of the Land Acquisition Act is squarely applicable and therefore, mandatory injunction may be granted against the respondents, directing them to refer the award for fixing the market value as per Section 18(2) of the Land Acquisition Act. 10. The learned Special Government Pleader (C.S) would submit in his argument that the object of acquisition was providing house sites to the Adi Dravidar community people under the scheme namely Tamil Nadu Harijan Welfare Scheme and therefore, the new Act namely, Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978, alone is applicable and under the provisions of the said Act, there would be no question of reference to the Sub Court concerned under section 18(2), since the appeal provisions under Section 9 of the new Act read with Rule 6 of the said Act to the Land Tribunal constituted under the said Act. He would also submit that if the plaintiffs are aggrieved by such award, they have to obtain certified copies or true copies and to prefer appeal before the Land Tribunal by paying court fees under Section 9 read with Rule 6 framed under the said Act. He would, therefore, submit that the judgment as referred by the learned counsel for the appellants reported in 1992 (I) LW 576 and 1999 (III) MLJ 265 are not applicable to the present case. He would further submit that even otherwise, the proceedings of the Land Acquisition Officer were conducted under the old Act, namely, Land Acquisition Act and Section 18 of the said Act is relevant for reference to the Sub Court concerned and it ought to have been made within six weeks from the date of knowledge of the award on a written application submitted by the aggrieved claimants and it cannot be referred by mere oral objection raised by the claimants. He would refer the judgment of Full Bench of this Court reported in 2008 (2) LW 560 (N.Rajaraman (died) and others ..vs.. The Special Tahsildar (Adi Dravidar Welfare), Gingee) in support of his arguments. He would refer the judgment of Full Bench of this Court reported in 2008 (2) LW 560 (N.Rajaraman (died) and others ..vs.. The Special Tahsildar (Adi Dravidar Welfare), Gingee) in support of his arguments. He would, therefore, request the Court that the courts below had correctly come to the conclusion of dismissing the claim of the plaintiffs seeking for mandatory injunction with a direction to refer the dispute under Section 18(2) of the Land Acquisition Act to the Sub Court concerned and therefore, the Second Appeal may be dismissed. 11. I have given anxious thoughts to the arguments advanced on either side. 12. It is an admitted fact that the lands in R.S.No.13/2A, 13/2C, 13/2D, 13/3A of Muthampalayam Village, Erode Taluk of an extent of 1.41.5 Hectares were acquired under the proceedings in L.A.No.8/85 for Adi Dravidar Welfare Scheme and the enquires were conducted by the Land Acquisition Officer and an award was passed in Award No.14/91 dated 27.08.1991, and thereafter, as per the direction of this Court in its order in W.P.No.10466 of 1990 dated 19.10.1990 a further enquiry was conducted and the award was passed on 20.03.1992 in Award No.1/92 in L.A.No.8/85. The said proceedings were conducted for the purpose of providing house sites to the Adi Dravidar community people and relevant provisions applicable for fixing the compensation is necessarily under the Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978. However, the plaintiffs have stated that they have raised objections regarding the fixation of market value by the Land Acquisition Officer and they had demanded for the referral of the dispute under Section 18 of the Land Acquisition Act, to the Sub Judge, Erode concerned for fixing the market value. However, the plaintiffs have stated that they have raised objections regarding the fixation of market value by the Land Acquisition Officer and they had demanded for the referral of the dispute under Section 18 of the Land Acquisition Act, to the Sub Judge, Erode concerned for fixing the market value. The courts below, namely, the trial court found that the plaintiffs, as land owners, ought to have given a written application to the Collector under Section 18(1) of the Land Acquisition Act, requiring for reference to Tribunal (Sub Court) within a period of six weeks from the date of award and since the plaintiffs did not give any written requisition, the request of the plaintiffs cannot be acceded; The learned first appellate Judge had considered in the appeal that the land in dispute was acquired for the welfare of Adi Dravidars under Adi Dravidar Welfare Scheme and the provisions of Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978 alone are applicable and the provisions of Section 18 of Land Acquisition Act does not arise for consideration, since under the provisions of Section 9 of the new Act read with Rule 6 of the Rules framed thereunder the appeal shall be preferred within six weeks after the receipt of award and therefore, the present suit is not maintainable. The first appellate court had also found that the said Act, namely, Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978 was upheld by the Hon'ble Supreme Court in 1995 (I) SCC 19 (State of Tamil Nadu ..vs.. Ananthi Ammal) and therefore, the proceedings should have been done in pursuance of the said Act only, and Section 18 of the Land Acquisition Act has no reference or application. 13. The said findings reached by the first appellate court was supported by the judgment of this Court reported in 1995 (II) MLJ 652 (R.Venkatahchalapathy and another ..vs.. State of Tamil Nadu and another) "10. .... As already seen the Supreme Court has upheld the validity of this Act except insofar as they provide for payment of compensation in installments, the said Act being intra vires the Constitution. Therefore, the State is precluded from acquiring the land for Harijan Welfare Scheme under the Act. Hence, I am of the opinion that the entire proceedings as initiated under the Central Act are bad. Therefore, the State is precluded from acquiring the land for Harijan Welfare Scheme under the Act. Hence, I am of the opinion that the entire proceedings as initiated under the Central Act are bad. Further, as per the judgment in S.L.P. (C) No.16989 of 1991, the initiation of the land acquisition proceedings under the Act are without authority of law and the respondents, in my opinion also are not entitled to continue the proceedings under the Land Acquisition Act, having regard to the provisions of Section 20 of the Act 31 of 1978. Inasmuch as the Supreme Court has upheld the validity of the Act 31 of 1978, the proceedings for acquisition of land for Harijan Welfare could be taken only under the said Act. Inasmuch as in the instant case, the proceedings have been taken under the Land Acquisition Act, 1894, the same is without jurisdiction or authority of law." 14. In the said circumstances, I could see that the plaintiffs ought to have preferred an appeal under Section 9 of the new Act and there could not be any reference be done under Section 18(2) of the Land Acquisition Act, as sought for by the plaintiffs. 15. Even otherwise, the provisions of the Land Acquisition Act is made applicable to the present case, whether a direction be issued to refer the matter to the Tribunal namely, Sub Court, Erode for fixing the market value is another question. It was contended that even an endorsement protesting the fixation of market value by the Land Acquisition Officer would be sufficient to constitute a written application under Section 18 of the Act. For that principle, the judgment of this Court reported in 1992 (1) LW 576 has been relied upon. Similarly, yet another judgment of this Court reported in 1999 (III) MLJ 265 has also be relied upon for the proposition that when notice has not been issued to the awardees, the written application for fixing the compensation or market value of the land can be submitted from the date of service of notice or submitting such application in an earlier point of time prior to the service of notice and reference can be made upon those applications. As regards this case, no such endorsement was made by the plaintiffs nor any notice was served upon the plaintiffs. As regards this case, no such endorsement was made by the plaintiffs nor any notice was served upon the plaintiffs. The case of the plaintiffs would be that they have raised oral protest and subsequently, they have sent a notice to refer the dispute after a lapse of three years and thereafter, they sent a notice under Section 80 CPC two years later to the earlier notice. The facts and circumstances as referred to in 1992 (I) LW 576 and 1999 (III) MLJ 265 are not applicable to the present case. In a recent judgment reported in 2008 (2) LW 560 this Court has categorically come to a conclusion which runs as follows:- "10. In view of the foregoing discussion, we hold that for making a reference under Section 18 of the Act, a written application after the award is passed is mandatory and such application is required to be made within the period of limitation prescribed under Section 18 of the Act. The reference is answered accordingly. The Registry is directed to place the papers before the Division Bench for disposal of the matters in accordance with law." 16. In the above referred judgment the different views of this Court have been regularised and the entitlement of the referral to the Tribunal for fixing the market value of the property could be done only by submitting a written application within a period of six weeks from the date of receipt of the award copy and it has been made mandatory. In the said circumstances, the request of the plaintiffs, even otherwise Section 18 of the Land Acquisition Act is applicable to them, cannot be considered since no written application was submitted by them within the stipulated time of six weeks. Therefore, I am of the considered view that the request of the plaintiffs cannot be considered and the judgments of both the courts below are perfectly alright and the questions of law formulated by this Court are not decided in favour of the appellants. 17. At this juncture, the learned counsel for the appellants would submit that the respondents may be directed to consider the benefits of Section 28(A) of the Land Acquisition Act to the appellants, if any market value has been fixed by the Court or Land Tribunal to be applicable to the lands of the plaintiffs acquired for the said purpose. 17. At this juncture, the learned counsel for the appellants would submit that the respondents may be directed to consider the benefits of Section 28(A) of the Land Acquisition Act to the appellants, if any market value has been fixed by the Court or Land Tribunal to be applicable to the lands of the plaintiffs acquired for the said purpose. No doubt, this Court finds that the provisions of Land Acquisition Act is not applicable to the present case and however, this Court cannot bar the appellants from applying under Section 28(A) of the Land Acquisition Act and it is for the authorities to pass legal orders on those applications, if filed by the appellants / plaintiffs. 18. For the foregoing discussions, I am of the view that the appeal preferred by the appellants / plaintiffs is liable to be dismissed and accordingly, dismissed. The judgment and decree dated 02.08.2001 made in A.S.No.95 of 2001 by the learned Principal District Judge, Erode, confirming the Judgment and Decree dated 13.12.2000 made in O.S.No.208 of 1999 by the learned I Additional District Munsif, Erode is hereby confirmed. No costs.