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2013 DIGILAW 4223 (MAD)

K. Gajendran v. District Collector Salem

2013-12-18

S.MANIKUMAR

body2013
Judgment 1. It is the case of the petitioner that his father Late Thiru A. Kumarasamy Udayar owned agricultural land comprised in Survey Nos. 214/2, 214/3 and 214/4 in Anaiyampatti Village, Gangavalli Taluk, Salem District, measuring 0.72.5 hectares. Acquisition proceedings were initiated under the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act 1978. 2. From the pleadings and material on record, it could be deduced that notice has been issued in Form I, under Rule 3(i) of the Rules framed thereunder to the petitioners. Thereafter, a Gazette Notification under Section 4(1) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act 31 of 1978 has been published in Salem District Gazette Extraordinary on 25.03.1999, acquiring lands of the petitioners and others. Subsequently, notice in Form III, as per Rule 5(i) of the rules framed thereunder, has been issued to the land owner and others, for payment of compensation amount. Proceedings in Na.Ka. No. 2307/97(A) dated 25.10.2001 of the Tahsildar (Adi Dravidar Welfare), Attur addressed to the learned Subordinate Judge, Attur, shows that the father of the petitioner Late A. Kumaraswamy Udayar, and owner of the land had already filed Writ petition No.17195 of 1999, challenging the acquisition proceedings and after withdrawing the same, submitted a letter dated 28.09.2001 for payment of compensation. The proceedings dated 25.10.2001 stated supra, further reveals that a sum of Rs.1,37,414/- determined as compensation, due and payable to Late A. Kumarasamy Udayar, had been deposited in Sub Court, Attur. After withdrawing, W.P. No.17195/1999, 14 years later, petitioner, son of Late Mr. A. Kumarasamy Udayar, has filed the present writ petition to quash the Notification No.26 dated 25.03.1999 of the District Collector, Salem, published in Salem District Gazette on the basis of a decision rendered in W.P. No. 17196/1999 dated 10.12.2001. The only contention raised in this writ petition is that the decision rendered in the above said writ petition applies to the facts of this case. 3. Heard the learned counsel for the petitioner and perused the material available on record. 4. At the outset, it could be seen from the proceedings of the Tahsildar (Adi Dravidar Welfare) Attur in R.C. Na.Ka. 3. Heard the learned counsel for the petitioner and perused the material available on record. 4. At the outset, it could be seen from the proceedings of the Tahsildar (Adi Dravidar Welfare) Attur in R.C. Na.Ka. No. 2307/ 97(A) dated 25.10.2001 addressed to the Learned Subordinate Judge, Attur, that Late Thiru A. Kumarasamy Udayar, land owner and father of the writ petitioner, had already filed a writ petition No. 17195/ 1999 in this Court, challenging the land acquisition proceedings and he had withdrawn the same. To peruse the order, Registry was directed to furnish a copy of the order. Perusal of the same shows that (1) Meenakshiammal and (2) Kumarasamy, have filed W.P. No.17195 of 1999 challenging the notification issued by the District Collector in Roc. No. 53002/98 (D-2) dated 22.03.1999 as published in Salem District Gazette Extraordinary No.26 dated 25.03.1999, in so as the petitioners therein are concerned. In the said Writ Petition, on 17.09.2001, this Court has passed the following orders. "The Learned counsel for the petitioners requested that he may be permitted to withdraw the writ petition. Permission granted. The Writ petition is dismissed as withdrawn." Since a sum of Rs.1,37,414/-, the amount determined, was not received earlier, the same had been deposited in the civil court. After withdrawing the writ petition, Mr.A. Kumarasamy Udayar, had submitted a letter dated 28.09.2001 for payment of compensation. Thereafter, vide his proceedings dated 25.10.2001, the Tahsildar (Adi Dravidar Welfare), Attur, has requested the learned Subordinate Judge, Attur, to return the sum of Rs.1,37,414/- already deposited in the Civil Court, for making payment to Mr.A. Kumarasamy Udayar, the land owner. Therefore, when the erstwhile land owner and father of the petitioner had consented to the acquisition proceedings and sought only for payment of compensation for the land acquired, it is not open to the petitioner, to assail the notification issued under Section 4(1) of the Tamil Nadu Acquisition of Lands for Harijan Welfare Schemes Act 31 of 1978. By withdrawing the writ petition No.17195 of 1999 and subsequently, by making a request on 28.09.2001, the land owner had consented to the acquisition of land. 5. The petitioner has no subsisting right to question the land acquisition proceedings, which had reached a finality on 25.03.1999, when a 4(1) Notification was issued under Tamil Nadu Acquisition of Lands for Harijan Welfare Schemes Act 31 of 1978. 5. The petitioner has no subsisting right to question the land acquisition proceedings, which had reached a finality on 25.03.1999, when a 4(1) Notification was issued under Tamil Nadu Acquisition of Lands for Harijan Welfare Schemes Act 31 of 1978. A Writ of Certiorarified Mandamus cannot be issued for mere asking. The petitioner has to substantiate that he has a subsisting legal right to be enforced against the respondents. When a Mandamus can be issued, this Court deems it fit to consider few of the decisions. (a) In the decision reported in (1996) 9 SCC 309 (State of U.P. and Ors. v. Harish Chandra and Ors.) in paragraph 10, the Apex Court held as follows: 10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition.... (b) In the decision reported in (2004) 2 SCC 150 (Union of India v. S.B. Vohra) the Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so. (c) In the decision reported in (2008) 2 SCC 280 (Oriental Bank of Commerce v. Sunder Lal Jain) in paragraphs 11 and 12 the Supreme Court held thus, 11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.: Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed. Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. 6. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. 6. When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows: “Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective." (emphasis supplied) 7. Even taking for granted that the petitioner has any right to seek for a writ of Certiorarified Mandamus, to quash a notification on any of the grounds available to him, delay and laches is per se apparent on the face of the record. 8. Laches or reasonable time are not defined under any Statute or Rules. "Laches" or "Lashes" is an old french word for slackness or negligence or not doing. 8. Laches or reasonable time are not defined under any Statute or Rules. "Laches" or "Lashes" is an old french word for slackness or negligence or not doing. In general sense, it means neglect to do what in the law should have been done for an unreasonable or unexplained length of time. What could be the laches in one case might not constitute in another. What is reasonable time has not been explained in any of the enactment. Reasonable time depends upon the facts and circumstances of each case. 9. The words "reasonable time", have been explained in Veerayeeammal v. Seeniammal reported in 2002 (1) SCC 134 , at Paragraph 13, and it is as follows: "13. The word “reasonable” has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word “reasonable”. The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the “reasonable time” is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyar’s The Law Lexicon it is defined to mean: “A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than ‘directly’; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.” 10. Reference can also be made to few decisions of the Supreme Court, where inordinate delay and laches, on the part of the litigant in approaching the Court has been disapproved: (i) In State of M.P., v. Nandlal Jaismal reported in 1986 (4) SCC 566 , the Supreme Court, at Paragraph 24, held as follows: "24. Reference can also be made to few decisions of the Supreme Court, where inordinate delay and laches, on the part of the litigant in approaching the Court has been disapproved: (i) In State of M.P., v. Nandlal Jaismal reported in 1986 (4) SCC 566 , the Supreme Court, at Paragraph 24, held as follows: "24. Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. (ii) In State of Maharastra v. Digambar reported in AIR 1995 SC 1991 , the Supreme Court, considered a case, where compensation for the acquired land was claimed belatedly and at Paragraphs 12, 18 and 21, held as follows: "12. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State invoking writ jurisdiction of the High Court under article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decision of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blame-worthy because of laches, undue delay, acquiescence, waiver and the like. ----- ----- Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State. 18.Laches or undue delay, the blame-worthy conduct of a person in approaching a Court of Equity in England for obtaining discretionary relief which disentitled for grant of such relief was explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. v. Prosper Armstrong (1874) 5 PC 221) thus : "Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it,or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy." 21. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy." 21. Therefore, where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person including a citizen without considering his disentitlement of such relief due to his blameworthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily." (iii) In State of Rajasthan v. D.R. Laxmi reported in 1996 (6) SCC 445 , the Supreme Court observed that though the order may be void, if the party does not approach the Court within a reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. (iv) In Chairman, U.P. Jal Nigam and another v. Jaswant Singh reported in AIR 2007 SC 924, the Supreme Court, after considering a catena of decisions on the aspect of delay, at Paragraph 13, held as follows: "13........Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted." 11. The petitioner has relied on a decision made in W.P. No. 17196/99 dated 10.12.2001. While dealing with a belated claim and filing of a Writ Petition on the basis of an order obtained in some other Writ Petitions, the Supreme Court in M/s. Rup Diamonds and Ors. The petitioner has relied on a decision made in W.P. No. 17196/99 dated 10.12.2001. While dealing with a belated claim and filing of a Writ Petition on the basis of an order obtained in some other Writ Petitions, the Supreme Court in M/s. Rup Diamonds and Ors. v. Union of India and Ors., reported in (1989)2 SCC 356 , observed that those people who were sitting on the fence till somebody else took up the matter to the court for refund of duty, cannot be given the benefit. In that context, Their Lordships held as follows: "Petitioners are re-agitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided. Their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void. There is also an unexplained, inordinate delay in preferring the present writ petition which is brought after a year after the first rejection. As observed by the Court in Durga Prashad case, the exchange position of this country and the policy of the government regarding international trade varies from year to year. In these matters it is essential that persons who are aggrieved by orders of the government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition. Therefore, these delays are sufficient to persuade the Court to decline to interfere. If a right of appeal is available, this order rejecting the writ petition shall not prejudice petitioners' case in any such appeal." 12. In the light of the decisions and discussion, this Court is of the view that the petitioner has not made out a case for issuance of Writ of Certiorarified Mandamus. In respect of the very same lands, the petitioner's father, who had challenged the acquisition proceedings, had withdrawn the Writ petition, accepted to receive the compensation, and thus acquiesced and waived his right. In respect of the very same lands, the petitioner's father, who had challenged the acquisition proceedings, had withdrawn the Writ petition, accepted to receive the compensation, and thus acquiesced and waived his right. The petitioner, who claims to have inherited the property, has locus standi to challenge the acquisition proceedings, and that too, 13 years, after the issuance of 4(1) Notification, under the Tamil Nadu Acquisition of Lands for Harijan Welfare Schemes Act 31 of 1978. For the reasons stated supra, the writ petition is dismissed. No costs. Consequently, the connected M.P.s are closed.