L.Baby v. The Secretary To Government

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29.06.2017

CORAM

THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN AND THE HONOURABLE MS. JUSTICE V.M.VELUMANI Review Application (MD) Nos.147 & 148 of 2015 in W.A.(MD) No.726 of 2013 Judgment reserved on 12.04.2017 Judgment pronounced on 29.06.2017 1.S.Surendran 2.S.Mahendran 3.S.Ramanathan 4.G.Uma 5.V.Manimekalai 6.S.Angayarkanni ... Petitioners / Appellants 4, 3, 5 to 8 in Rev.Applc.(MD).147/15 7.S.Ravindran ... Petitioner / 2nd Appellant in Rev.Applc.(MD).148/15 Vs.

1. The State of Tamil Nadu Rep.by its Secretary, Housing and Urban Development Department, Chennai - 600 009.

2.The Special Tahsildar, (Land Acquisition), Madurai South Neighbourhood Scheme, Unit - III, Madurai.

3.Tamil Nadu Housing Board, Rep.by its Chairman and Managing Director, Anna Salai, Nandanam, Chennai.

... Respondents/Respondents 4.Madurai Bar Association Through its Secretary District Court Campus, Madurai 5.S.Ravindran ... Respondents / Appellants 1 & 2 in Review Application 147/15

Respondents in Rev Application 148/15:

1. The State of Tamil Nadu Rep.by its Secretary, Housing and Urban Development Department, Chennai - 600 009.

2.The Special Tahsildar, (Land Acquisition), Madurai South Neighbourhood Scheme, Unit - III, Madurai.

3.Tamil Nadu Housing Board, Rep.by its Chairman and Managing Director, Anna Salai, Nandanam, Chennai.

4.Madurai Bar Association Through its Secretary District Court Campus, Madurai. ... Respondents 1 to 4/Respondents 1 to 3 5.S.Mahendran 6.S.Surendran 7.S.Ramanathan 8.G.Uma 9.V.Manimekalai 10.S.Angayarkanni ... Respondents 5 to 10/ Appellants 3 to 10 Common Prayer : Review Applications are filed under Order 47 Rule 1 r/w. Section 114 of CPC to review the order passed in W.A. (MD) No.726 of 2013 dated 28.04.2014.

Prayer in W.A. (MD) No.726 of 2013:

Writ Appeal under clause 15of letters patent against the order of the learned Single Judge, dated 27.03.2013 made in WP(MD).No.9759 of 2012.

Prayer in WP(MD). 9759/ 2012 :

Writ Petition is filed under Article 226 of the Constitution of India, praying this Court To issue a WRIT OF CERTIORARI, call for the records relating to the acquisition proceedings initiated by the Respondent under section 4(1) of Land Acquisition Act as published in the Tamilnadu Government Gazette dated 29.07.1992 and Award No. 7/1994 dated 25.07.1994 and award No. 15/1994 dated 28.07.1994 in so far as the lands of the petitioners 2 to 8 and quash the entire acquisition proceedings the under or any other appropriate writ, order or direction or an other writ to the said effect. (Prayer amended as per the order dated 30/07/2012 MP (MD)3/12 in WP(MD) 9759/2012)

For Petitioners : Mr.Yasod Vardhan, Senior Counsel for M/s.G.R.Swaminathan For RR1 to RR3 : Mr.B.Pugalendhi Addl. Advocate General Assisted by Mr.R.Janarthanan For RR4 : No appearance For RR5 : Mr.K.S.Sreenivasan

O R D E R

V.M.VELUMANI, J.

These Review Application is filed by the petitioners to reconsider the order passed in W.A. (MD) No.726 of 2013 dated 28.04.2014.

2. The petitioners in Review Application No.147 of 2015 are the appellants 4, 3 and 5 to 8 and petitioner in Review Petition No.148 of 2015 is the second appellant in W.A.No.726 of 2013.

3. The land measuring a total extent of 90 acres and 50 cents in Survey Nos.94/1B, 94/1C, 94/1D, 94/1E, 94/1F, 94/1G, 99/1H and 99/1I, Uchapatti Village, Tirumangalam Taluk, Madurai District was acquired by the Government for the formation of Madurai South Neighbourhood Scheme. Two notifications under Section 4 (1) of Land Acquisition Act 1984 were issued by the concerned Department on 06.06.1991 & 14.06.1991 and published in Tamil Nadu Government Gazette on 03.07.199. Paper publications were also made on 19.07.1991 and declaration under Section 6 of the Act was published on 28.07.1992. Award No.7 of 1994 was passed on 25.07.1994 and another award in Award No.15 of 1994 was passed on 28.07.1994.

4. The petitioners and other land owners filed WP Nos.16039 of 1994, 17050 & 17051 of 1994 challenging the land acquisition proceedings on the ground that awards were not passed within the time limit as contemplated under Section 11 (9) of the Act. Both the writ petitions were dismissed on 05.02.2002 holding that the awards were passed within two years from publication of declaration under Section 6 of the Land Acquisition Act. Challenging the said order of dismissal, Writ Appeal Nos.769 & 770 of 2002 were filed. Another Writ Appeal No.768 of 2002 was filed by one Jaya against the order passed in W.P.No.17051 of 1994. All the three Writ Appeals were taken up for hearing and the Division Bench of this Court, by order dated 14.07.2006 dismissed all the three writ appeals with a liberty to the petitioners to approach the Government.

5. The petitioners made representation on 31.07.2006 to the

Government but the same was rejected on 20.12.2006. Subsequent to the rejection by the Government, the petitioners filed Review Application Nos.13 to 15 of 2007 to review the order of Division Bench of this Court dated 14.07.2006. This Court, dismissed all the three Review Applications by order dated 23.02.2007, taking note of the fact that the entire amount of compensation as awarded by the Tahsildar had been forwarded on 16.02.2007 itself and held that the petitioners are entitled to withdraw the said amount.

6. The petitioners, on 08.03.2006 had borrowed a sum of Rs.48,50,000/- from State Bank of India, Agricultural Development Branch, RMS Road, Madurai and mortgaged the litigated property which was acquired by the Government on 18.03.2006. The petitioners gave two representations to the Government on 25.04.2008 and 18.02.2010 and filed W.P.(MD) No.2296 of 2010 for a mandamus to consider their representation dated 25.04.2008 and 18.02.2010. This Court, by order dated 25.02.2010 disposed off the said writ petition directing the petitioners to give a detailed representation under Section 48 (B) of the Land Acquisition Act and directed the Government to consider the same. Based on the order, the petitioners made representation on 22.03.2010 but the same was rejected by the Government by its order dated 07.09.2010.

7. The petitioner, in Review Application No.148 of 2015, as Power Agent of other petitioners entered into an agreement with Madurai Bar Association agreeing to sell the property to the Association. The Madurai Bar Association and Petitioners filed WP (MD) No.9759 of 2012 for quashing the Award Nos.7 & 15 of 2014 and for quashing the entire acquisition proceedings and by amendment included prayer for quashing notifications under 4 (1) and the declarations under Section 6 of the Land Acquisition Act. By order dated 27.03.2013, the writ petition was dismissed by the learned Judge of this Court on the ground that the said writ petition is barred by resjudicata and the writ petition on the same subject matter is not maintainable. Against the said order of dismissal, the Madurai Bar Association and petitioners filed W.A.(MD) No.726 of 2013.

8. The Division Bench of this Court in which one of us [V.M.VELUMANI, J.] was a party, considered various averments made by the Madurai Bar Association and the petitioners and dismissed the said Writ Appeal. The present two Review Applications are filed by the petitioners to re-consider the said judgment.

9. The learned Senior Counsel for the petitioners submitted that the petitioners are in possession of the land and they are cultivating the same. No notice was served prior to taking of possession and they have challenged the mode of taking possession by the Government. They have produced revenue records which were not challenged by the respondents. In the judgments, it is assumed that the possession is with the first respondent. Even though there is no document or pleading with regard to possession taken by the

second respondent, the claim of petitioners were rejected on the ground that 80% of the land owners have been paid with the compensation. The petitioners have stated in the affidavit in W.P. (MD) No.9759 of 2012 that they have taken loan from the State Bank of India, Agricultural Development Branch, RMS Road, Madurai on mortgaging the litigated property. In the judgment, it has been erroneously observed that the petitioners have suppressed the loan taken from the Bank. It is not correct to state that the acquisition proceedings have attained finality twenty (20) years ago. The acquisition proceeding becomes final only when actual possession is taken and compensation amount is paid to the land owners.

In the impugned judgment, the Division Bench has not property considered Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and judgment of the Hon'ble Apex Court relied on by the learned counsel for the petitioners. The Division Bench failed to see that the compensation was not paid to the petitioners or not deposited in to the Civil Court and therefore it is not a deemed payment as per Section 24 (2) of the Act.

10. The learned Senior Counsel for the petitioners relied on the following judgments - (i) AIR 2016 (SCC) 4817 [Kumar Aluminium Ltd. v. Asset Reconstruction Company India Ltd.]

5. We are afraid, we cannot appreciate the above submission of the learned counsel for the State.

On the admitted facts, the land acquisition proceedings have lapsed since there is no stay on any court operating in the matter of possession or acquisition of the lands of the appellants after 12.08.2008. The 2013 Act came into force on 01.01.2014. Therefore, five years prior to the coming into force of the 2013 Act, the appellants have not been dispossessed. It is also a fact that there is no payment of compensation in accordance with law as declared by this Court in Pune-Municipal Corporation & Anr. v. Barakchand Misirimal Solanki & Ors. Reported in 2014 (3) SCC 183.

(ii) AIR 2016 2584 [Vijay Latka v. State of Haryana]

7. As and when land is taken over by way of acquisition, the land owner has to be compensated with the amount of compensation duly determined under the Act. In case there is any dispute as to who is to be paid the amount, the same is to be deposited in Court in terms of Section 31 of the 1894 Act. In this case before us, the stand of the Requisitioning

Authority, namely, Haryana Development Authority is that the money is ready with them and it is for the land owner to come and receive the payment. This stand is not permissible under the law. It is for the authorities concerned to pay the money and take the land and in case there is any dispute as to whom the money should be paid, then the same has to be deposited in Court.

(iii) 2009 (10) SCC 464 [S.Bagirathi Ammal v. Palani Roman Catholic Mission]

22. It is clear that on the date when the amended Act came into force, the application under Section 9 of the principal Act filed by the tenant-appellant herein was still pending. Though Mr. M.N. Krishnamani, learned senior counsel appearing for the appellant, submitted that all formalities were completed before coming into force of the amended Act, as pointed out earlier, pursuant to the order of the High Court, the sale deed was executed only on 28.10.1996 whereas the amended Act (Act No.2 of 1996) came into force on 11.1.1996 much earlier to the execution of the sale deed, hence, the contention of learned senior counsel for the appellant is not acceptable and we are in agreement with the conclusion arrived at by the High Court. As rightly concluded by the High Court, the decree in O.P. No. 4 of 1977 became a nullity on and from 11.1.

1996, the executing Court committed an error in executing the sale deed after coming into force of amended Act. Further as rightly observed by the High Court, unless the sale deed is executed either by the Mission or by the Court, the fruits of the decree will not be realized by the tenants and the proceedings will come to an end only upon execution of the sale deed. Therefore, the tenant cannot be heard to say that the proviso applies to him and that the proceedings are not invalidated. The High Court is right in holding that the decree not having been executed by means of a sale deed, the proceedings are deemed to be pending and, therefore, were determined with the coming into force of the amendment Act.

(iv) Judgment of Hon'ble Supreme Court dated 08.12.2015 in I.A.Nos.4 & 5 in Civil Appeal Nos.2851 & 2852 of 2009.

6. In the current Appeals, compensation was neither paid to the Appellants nor deposited in the appropriate Court. The retention of it by the Land Acquisition Collector till such time as the Appellants made applications for it would not amount to compensation being paid to them. The contention of the Respondent is thus entirely erroneous. Since the Award predated the commencement of the 2013 Act by well over five years and compensation has not paid to the Appellants, Section 24(2) comes into operation in favour of the Appellants. Whether possession was taken by the Respondent need not be dilated upon nor need it detain us any further. The acquisition is deemed to have lapsed in these circumstances. The Respondent may initiate fresh acquisition proceedings in accordance with the provisions of the 2013 Act, if it so wishes.

(v) Judgment of Hon'ble Supreme Court dated 09.09.2016 in Civil Appeal No.5811 of 2015.

11. The learned Additional Advocate General appearing for the respondents contended that the present Revision Petition amounts to fourth round of litigation. Earlier, the petitioners filed the following Writ Petitions, Writ Appeals and Review Applications - (i) W.P.(MD) Nos.16039 of 1994, 17050 & 17051 of 1994 (ii) W.A.(MD) Nos.768 & 769 of 2002 (iii) Review Application (MD) Nos.13 to 15 of 2007 (iv) W.P. (MD) No.9759 of 2012 (v) W.A.(MD) No.726 of 2013 (vi) SLP No.33718 of 2014 filed by the petitioner in Rev. Petition No.148 of 2015 challenging the present impugned order.

12. In addition to the above, the petitioners have given representation on 31.07.2006 for re-conveyance which was rejected by the Government on 20.12.2006 and without challenging the said order, the petitioners have given representation on 25.04.2008 & 18.04.2010 and filed WP (MD) No.2296 of 2010 for a direction to consider the representation. This Court dismissed the writ petition by order dated 25.02.2010. Again, the petitioners gave representation on 23.02.2010 which was rejected by the court on 07.09.2010. After such rejection, the petitioners filed W.P.No.9759 of 2012 to quash the land acquisition proceedings which was dismissed by this Court on 27.03.2013. Against that, the petitioners filed W.A.No.726 of 2013 and the same was dismissed by this Court by impugned order dated 28.04.2014. The petitioner in Rev.Application No.148 of 2015 filed SLP No.33718 of 2014 challenging the said judgment which was dismissed by the Hon''ble Apex Court on 05.01.2015. In view of the facts, the present Review Petitions are devoid of merits and abuse of process of court.

13. The various contentions raised by the petitioners in W.A. (MD) No.726 of 2013 was considered by the Division Bench and Writ Appeal was dismissed by the impugned judgment. In the impugned judgment, the Division Bench has considered all the judgments in this aspect and the judgment of the Hon'ble Apex Court reported in Pune Municipal Corporation v. Harakchand Misirimal Solanki [2014 (1) CTC 755. The petitioners are trying to re-argue the matter and there is no error apparent on the face of record in the impugned judgment.

14. As far as possession is concerned, the petitioners have not claimed that the possession is still with them. The documents relied on by the petitioners with regard to possession were considered and rejected by the Division Bench. Further, as per the direction of this Court, the III Additional Sub Court, Madurai, before whom the LAOP was pending for enhancement of compensation, conducted enquiry and held that the possession was taken after passing of award by the Government. The possession was handed over to Tamil Nadu Housing Board who is the beneficiary and has been shown as owner in all the Revenue records. Tamil Nadu Housing Board has developed 10,000 housing plots in the acquired land by laying boundary stones. An approach road 120 feet from NH7 is also in progress. A sum of Rs.218.77 Crores had been approved for the said scheme. This welfare scheme is formulated to help the houseless poor.

15. As far as payment of compensation is concerned, in the order passed in the Review Application Nos.13 to 15 of 2007 filed by the petitioners, a Division Bench of this Court, by order dated 23.02.2007 permitted the petitioners to withdraw the compensation amount. Meanwhile, State Bank of India made a claim on compensation amount and requested the acquisition officer not to disburse the compensation amounts to the petitioners and hence the petitioners did not withdraw the amount.

16. Considering the deposit and direction of this Court to withdraw the amount, the amount of compensation is deemed to have been paid to the petitioners. The learned Additional Advocate General further contended that the factum of taking possession and payment of compensation and judgment of the Hon'ble Apex Court reported in Pune Municipal Corporation v. Harakchand Misirimal Solanki [2014 (1) CTC 755] was considered by Division Bench in the impugned order and were rejected by giving cogent and valid reasons. Hence, the petitioners are not entitled to raise the same issue in the review petition.

17. Heard the learned Senior Counsel for the petitioners, learned Additional Advocate General appearing for the respondents and perused the materials available on record.

18. From the grounds raised in the review petitions and

arguments of the learned Senior Counsel for the petitioners, it is seen that the petitioners are seeking re-consideration of impugned order in the review petition on the ground that the petitioners are still in possession of the land acquired by the Government and compensation amount has not been paid to them. As rightly pointed out by the learned Additional Advocate General, these points were urged before the Division Bench and by impugned order, these contentions were rejected by the Division Bench by giving valid reasons.

19. As far as possession is concerned, the respondents have stated that possession was taken by Tamil Nadu Housing Board part by part on 12.05.2008, 03.08.2009 and on various dates. This Court, passed the impugned order, based on the above averments coupled with the fact that the petitioners have not claimed that they are in possession of the acquired land in first two writ petitions filed by them. As far as patta standing in the name of the petitioners is concerned, this Court, taking note of the fact that Head Quarters Deputy Tahsildar had issued pattas on 24.04.2012 and 23.01.2013, i.e. after 18 years of passing of award did not accept the same. The respondents 1 to 3 have stated in the counter that the land in acquisition had been developed by cleaning the land and by laying boundary stones.

20. According to the learned Additional Advocate General, the layout consisting of 10,000 plots and roads, water and drainage system have also been provided. A sum of Rs.50,00,00,000/- had been invested from and out of 218.77 Crores approved for the scheme. Approval for satellite city has been granted and the Central Government has chosen nearby places for establishing AIMS Hospital in view of the approval for satellite city. These contentions are not disputed by the petitioners.

21. The next contention of the petitioners is that the Division Bench has not considered the fact that the compensation amount was not paid to the petitioners and also not deposited into the court. The amount deposited by the beneficiary with Acquisition Officer is not a deemed payment to land owners. The compensation amount, either must be handed over to the land owners or to be deposited into the concerned Civil Court. In the present case, the respondents failed to comply the conditions. The Division Bench failed to consider the judgment reported in Pune Municipal Corporation v. Harakchand Misirimal Solanki [2014 (1) CTC 755. These contentions are untenable and unsustainable. The Division Bench, in the impugned order took note of the fact that earlier, the Division Bench of this Court vide order dated 23.02.

2007 permitted the petitioners to withdraw the compensation amount but the petitioners failed to do same. Meanwhile, the petitioners have borrowed monies from State Bank of India by mortgaging the litigated property, suppressing the acquisition proceedings.

to disburse the compensation amounts to the petitioners. The petitioners have settled the claim of the State Bank of India before the Lok Adalat in OA No.187 of 2014 filed by State Bank of India before DRT Madurai on 03.03.2016 only. The contention of the learned Senior Counsel for the petitioners is that the Division Bench erred in holding that the petitioners have suppressed the borrowing of loan from State Bank of India in the appeal filed in WA No.9759 of 2012. The said contention is factually incorrect. The Division Bench has not stated that the petitioners have suppressed the borrowing of loan amount from State Bank of India. On the other hand, the Division Bench has held that the petitioners have borrowed a sum of Rs.48,50,000/- from State Bank of India by mortgaging the properties which were acquired by the Government "perhaps without disclosing the acquisition".

22. The Hon'ble Apex Court in Banda Development Authority vs. Moti Lal Agarwal [2011 (5) SCC 394] has laid down five principles. In the said judgment, all the earlier judgments were considered. The fifth principle laid down by the Hon'ble Apex Court is as follows - (v) if the beneficiary of the acquisition is an agency of instrumentality of State and 80% of the compensation is deposited and substantial portion of the acquired land had been utilised in furtherance of the particular public purpose, then the Court can reasonably presume that possession had been taken.

The Government had granted administrative sanction for implementation of the Integrated Satellite Township at Thoppur AND Uchappati Village consisting of 19500 plots for LIG, MIG, HIG and economically weaker categories. In view of this fact, this Court held that the case on hand will fall under 5th principle formulated by the Hon'ble Apex Court.

23. It is well settled law that the power of the Court is very limited while considering the review petition. Only when there is an error apparent on the face of the record, earlier order can be re-considered. A review petition is not an appeal and in the guise of review, cannot re-argue the matter on merits. This has been held by the Hon'ble Apex Court in the judgment reported in 2000 (6) SCC 224 [Lilli Thomas and Others Vs. Union of India and Others], wherein, in paragraph 52, it was held as under: "52.The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute.

This Court in Patel Narshi Thakershi Vs.

Pradyumansinghji Arjunsinghji [1971 (3) SCC 844 : AIR 1970 SC 1273] held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error. ....."

(emphasis supplied)

24. The above judgment was followed by the Division Bench of this Court in the judgment reported in 2014 (3) TLNJ 245 [Jai Kavitha v. The Authorised Officer, Syndicate Bank Regional Office,Ch-1 & others] wherein in Para 9, it has been held as follows - "9.The power of review under Order 47 Rule 1 of CPC can be exercised by a court of law, if the order in question comprises a mistake or an error apparent on the face of record. Once an order is pronounced, it should not be altered, unless there is an apparent error. Law is well settled that erroneous finding is not a ground for review, so also improper consideration for that matter. In review application, the court does not sit in appeal over its own judgment and the said application cannot be treated as an appeal. This position has been ruled by the Supreme Court in Lily Thomas Vs.

Union of India [2000 (6) SCC 224]. Therefore, in the absence of any error apparent on the face of record, we are not inclined to interfere with the order in question, except to the extent of deleting of the portions in paragraphs 14 and 15 of the impugned order, with which the applicant is concerned as to having an impact on the proceedings pending before the tribunal, as stated in the foregoing paragraph."

(emphasis supplied)

25. The above two judgments were also followed in two Rev.Appln.(MD) Nos.142 of 2014 dated 25.11.2014 and Rev.Appln.(MD) No.82 of 2013 dated 04.02.2015 wherein it has been held that the

petitioners in the review are not entitled for re-hearing the issue.

26. In the light of the dicta laid down by the Honourable Apex Court as well as by the Division Benches of this Court, we are of the considered view that the earlier order of the Court can be reconsidered only if there is an error apparent on the face of record and in that event, the said error can be rectified. Otherwise, a Review Application is not at all maintainable. In the present case, the learned Senior Counsel for the petitioners vehemently re-argued the matter on merits, mainly contending that the Division Bench, by impugned order committed an error with regard to possession of land and payment of compensation.

A reading of the impugned judgment clearly shows that the Division Bench has considered each and every issue raised by the petitioners in detail and has given a finding with regard to possession and payment of compensation. The petitioners have not disputed the fact that the SLP No.33718 of 2014 filed by the petitioner in Rev. Petition No.148 of 2015 challenging the present impugned judgment was dismissed. Having failed before the Hon'ble Apex Court, it is not open to the petitioners to file review petition when there is no error on the face of record in the impugned judgment to re-argue the matter.

27. Therefore, we do not find any error apparent on the face of record in the judgment, dated 28.04.2014 passed by this Court in W.A. (MD) No.726 of 2013. Accordingly, the Review Application fails.

28. In the result, both the Review Applications are dismissed. No costs.

Sd/- Assistant Registrar(T&P) /True copy/ Sub Assistant Registrar To 1.The Secretary, Housing and Urban Development Department, Chennai - 600 009.

2.The Special Tahsildar, (Land Acquisition), Madurai South Neighbourhood Scheme, Unit - III, Madurai.

3.The Chariman, Tamil Nadu Housing Board, Managing Director, Anna Salai, Nandanam, Chennai.

4.The Secretary, Madurai Bar Association, District Court Campus, Madurai.

+2ccs to Mr.C.Govindarajan, Advocate in SR.No.62993 +2ccs to Mr.R.Janarthan, Advocate in SR.No.62920 rgr AE/MR/KKR/SAR3/06.07.2017/13P/9C order in Review Application (MD) Nos.147 & 148 of 2015 29.06.2017