COLLECTOR OF LAND ACQUISITION & ORS. Vs. M/S. ANDAMAN TIMBER INDUSTRIES : Supreme Court - Section 146 of the Andaman and Nicobar Islands, Land Revenue and Land Reforms Regulation, 1966 And Sections 4(1) (2), 6(1), 7 and 17 (1) & (4) of The Lan
Supreme Court of India
I.A. NO. 7 OF 2014 IN CIVIL APPEAL NO. 1810 OF 2009 Judgment Date: Dec 11, 2014
NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. NO. 7 OF 2014
IN
CIVIL APPEAL NO. 1810 OF 2009
COLLECTOR OF LAND ACQUISITION & ORS. ......APPELLANTS
Vs.
M/S. ANDAMAN TIMBER INDUSTRIES ......RESPONDENTS
WITH
CONTEMPT PETITION (C) NOS.263 & 264 OF 2014
O R D E R
V.GOPALA GOWDA, J.
This I.A. No. 7 is filed by the appellants in Civil Appeal No. 1810
of 2009, which was disposed of on 28.11.2013 by this Court. The appellants
have filed this application to modify the said order in the appeal and pass
such other order or orders as this Court may deem fit and proper in the
facts and circumstances of the case and urged certain relevant facts.
The learned Attorney General of India, Mr. Mukul Rohatgi, appearing on
behalf of the appellants has contended that the land bearing Survey No.
22/3-23 measuring 8.86 hectares in Shorepoint Village, Bambooflat, South
Andaman, was recorded as Grant in favour of Krishi Gopalan Shilpa
Shikshalaya, Calcutta. Thereafter, it was allotted in favour of the
respondent herein by way of a licence deed in Form - AG-3, which was
executed on 2.1.1990 by the Deputy Commissioner, Port Blair in exercise of
his power under Clause (ii) of Section 146 of the Andaman and Nicobar
Islands, Land Revenue and Land Reforms Regulation, 1966 (for short "The
Regulation, 1966") for commercial purpose, subject to the general
provisions of the said Regulation made therein with certain conditions for
a period of 30 years, which was effective from 1.1.1968. The relevant
conditions in Clauses 6 and 7 of the Form AG-3, upon which strong reliance
has been placed by the appellants which terms of the licence state that the
granting authority has the power of cancellation or modification of the
licence and it can resume forthwith the whole or part of the land under
licence and in the event of cancellation or resumption of the licence as
aforesaid, no compensation shall be paid to the licensee. Further, the
licence is subject to the payment of premium of Rs.1,06,320/-. Further,
reliance was placed upon the notifications issued under Sections 4(1) (2),
6(1), 7 and 17 (1) & (4) of The Land Acquisition Act, 1894 (for short "the
L.A.Act"), to show that, what was proposed to be acquired by the respondent
were pieces and parcels of the land along with the trees and structure if
any, standing thereon which are needed for public purpose namely, for the
development of Port related facilities. The learned Attorney General
further submits that the land was granted by way of licence to the
respondent for the purpose of running the respondent's timber industry,
hence, he cannot be called as an interested person in terms of Section 3
(b) of the L.A. Act, as the land was granted in his favour as a licensee.
It is further contended that under the provision of Section 146 clause (i)
of the Regulation, 1966, a licence can be granted in favour of the licensee
in respect of the government land for a maximum period not exceeding 30
years with an option for renewal for a like period i.e. upto 60 years, for
the purpose of cultivation of rubber crop, a longer period may be specified
by the Chief Commissioner with the approval of the Government. Reliance was
also placed by him upon the provision of Section 38(1) of the Regulation,
1966 to substantiate the plea of the appellants that all the land in the
Union Territory of Andaman and Nicobar Islands is vested absolutely with
the Government, save as provided by or under this Regulation, no person
shall be deemed to have acquired any property therein or any right to or
over the same by occupation, prescription or conveyance or in any other
manner whatsoever, except by a conveyance executed by or under the
authority of the Government.
Further, reliance was placed upon Section 141 of the Regulation, 1966 which
states that there shall be 4 types of classes of tenants namely,(i)
Occupancy tenants; (ii) Non-occupancy tenants; (iii) Grantees; and (iv)
Licensees and also Section 142 (a) and (b) and Section 143 which defines
different kinds of occupancy and non-occupancy tenants. Section 144(1)
provides for the class of grantees. Section 144(2) is a non-obstante
clause, which provides that a person who, not being an occupancy or non-
occupancy tenant, is in possession of any coconut or arecanut in the
Nicobars, shall be deemed to be a grantee for the purpose of the
Regulation, for such period as the Chief Commissioner may by notification
specify from time to time. Section 144 clauses (1) and (2) of the
Regulation, 1966 clearly state that the respondent is neither a tenure
holder nor a grantee but a licensee governed by the provision of Section
146 clauses (i) and (ii). Therefore, the respondent is not an "interested
person" in terms of the definition of Section 3(b) of the L.A. Act to
prefer a claim for compensation upon the land in question before the Land
Acquisition Collector.
Further, reliance was placed on behalf of the appellant upon the award No.5-
39/LA/ADM/2002 passed on 26.9.2002 by the Land Acquisition Collector,
wherein a mistake had crept in, with relation to the property acquired
namely, the building and the trees by the Union Territory under the
notification read with the provisions of Sections 17(4), 4 and 6 of the L.A
Act. The Land Acquisition Collector wrongly referred to the land in respect
of the licensee, as it was contrary to the acquisition notifications,
particularly in the final notification, it is specifically mentioned in
express terms that the respondent is a licensee/tenant and not the owner of
the land. The notification dated 23.07.2002, published under the provisions
of Section 4(1) of the L.A. Act, expressly stated that the building
structures, the trees and crops standing on the land mentioned in the
Schedule including Survey Nos. 22/3 (6.91 hectares) and 23 (1.95 hectares)
which comes to a total of 8.86 hectares, are classified as commercial.
Therefore, the Land Acquisition Collector erred in determining the market
value of the land to the extent of a portion of the property at
Rs.3,03,03,567/-, the amount which is already paid to the respondent.
Further, on the basis of the notifications referred to supra, a writ of
mandamus was filed by the respondent before the Circuit Bench of Calcutta
High Court, at Port Blair, which was allowed by issuing a writ of mandamus
as prayed by him. The writ appeal was preferred by the appellants against
the judgment and order of the learned single Judge, which was dismissed on
merits and the cross-objections filed by the respondent in the said writ
appeal was allowed and the said judgment and order of the Division Bench of
the High Court was affirmed by this Court in the aforesaid civil appeal
vide order dated 28.11.2013 by recording its reasons. This application is
filed by the appellant with a view to modify the order for the reasons
stated in the application. The legal contentions urged by the learned
Attorney General on behalf of the appellants, contending that the mistake
committed by the Land Acquisition Collector in passing the award which is
contrary to the acquisition notification, was neither brought to the notice
of the learned single Judge and the Division Bench of High Court nor this
Court, which is a mistake on the part of the appellants. In support of the
above legal submissions, he has placed reliance upon the judgment of this
Court in A.R. Antulay v. R.S. Nayak & Anr.[1], wherein this Court has
succinctly laid down the law in support of the proposition that "an
elementary rule of justice is that no party should suffer by mistake of the
Court". Therefore, the present application has been filed by the appellants
to see that the public interest shall not suffer on account of mistake
committed by the Land Acquisition Collector, which relevant fact has been
neither brought to the notice of the High Court nor this Court. Therefore,
he has contended that miscarriage of justice has taken place and the same
can be corrected by this Court by modifying the order as prayed in the
application. He has also placed strong reliance upon the C.B.I. final
report no.1 dated 2.5.2008, produced with the rejoinder affidavit filed by
the appellants at paragraphs 27 and 28 wherein, the lack of original land
records was stated as the reason due to which a decision for resumption of
land could not be taken.
It is stated in the report that it was not possible for the C.B.I to fix
the responsibility and establish mala fides/criminality on the officers,
who have not pressed for resumption of the land for cancellation of licence
of the respondent in respect of the land involved in the proceedings. It is
further stated in the report that during the course of investigation
conducted by the CBI, no evidence came up showing the dishonesty on the
part of the officials who dealt with the matter. Further, instead of
resumption of land, during the period 1990 to 2002, the same method of
awarding compensation had been followed in all the cases of acquisition,
which indicated that the acquisition of the land in question by giving
substantial compensation was more of a result of a systemic failure than
any criminality or mala fides on the part of the concerned public servants,
who have processed the matter. Therefore, the learned Attorney General
submits that the prayer made in the application requires to be granted,
otherwise a great miscarriage of justice will be allowed to sustain and
thereby public interest will be affected, if the judgment and order of
issuing a writ of mandamus given to the appellants by the High Court in
favour of the respondent is required to be complied with, which is in
violation of the provisions of Section 38 read with Section 146 (ii) of the
Regulation, 1966, in respect of the Government land, which is neither
acquired nor could be acquired in law.
The learned senior counsel, Dr. A.M. Singhvi, on behalf of the respondent
has placed reliance upon the lease deed of land which was executed on
1.9.1960, stating that the said lease is a permanent lease. The said lease
deed was registered prior to the Regulation, 1966 which came into force and
therefore, the said Regulation is not applicable to the land involved in
this case. Therefore, the respondent is an interested person upon the land
in question in terms of the definition under Section 3(b) of the L.A. Act
and reliance has been placed by him upon the judgment of this Court in the
case of Saraswati Devi v. Delhi Development Authority & Ors.[2], and in the
case of The Special Land Acquisition & Rehabilitation Officer v. M.S.
Sheshagiri Rao & Anr.[3] In the case of Saraswati Devi (supra), this Court
took notice of the facts with respect to the evacuee property, acquired by
the Central Government under Section 12 of the Displaced Persons
(Compensation and Rehabilitation) Act, 1954 (for short, "the Act, 1954").
On acquisition of such property under Section 12 of the Act, 1954, it
became part of the compensation pool under Section 14 of the said Act in
exercise of the power conferred under Section 20 of the Act, 1954, upon the
managing officer or the managing corporation to transfer the property out
of the compensation pool. The above property was notified to be sold
by way of public auction on 21.6.1958. The husband of the appellant who bid
Rs.24,500/- for the above said property, was the highest bidder, which was
accepted by the Auctioning Authority. Sale certificate as contemplated
under the provisions of the Displaced Persons (Compensation and
Rehabilitation) Rules, 1955 was issued and the same was registered with the
Sub-Registrar on 15.7.1981. Dr. Singhvi, learned senior counsel placed
strong reliance on paragraphs 44 & 45 of the above decision, wherein it is
stated that on creation of an encumbrance, the subject property could be
acquired under the Act, even though the ownership of the land vested with
the Central Government. He has further relied upon the decision of this
Court in the case of Delhi Administration v. Madan Lal Nangia & Ors.[4],
wherein it has been held that at the time of acquisition of evacuee
property under Section 12 of the Act, 1954, the interest on such property
vests on a private person, under the Land Acquisition Act, even though the
land is owned by the Government. He submits that the said case is aptly
applicable to the fact situation of the present case in support of the
respondent. Therefore, the judgment and order is sought to be modified by
the appellants, as this Court has affirmed the orders of the learned single
Judge and the Division Bench of the High Court in the writ appeal filed by
the respondent by issuing a writ of mandamus to the appellants to pay
compensation to the remaining extent of 5.22 hectares of land acquired by
the government under the notifications referred to supra, upon which
reliance was placed by the learned Attorney General. It was contended that
the judgment and order sought to be modified are impermissible in law as
there is no miscarriage of justice as urged by the learned Attorney
General. For the same proposition, he has placed reliance upon the judgment
of this Court in M.S. Sheshagiri Rao & Anr. (supra) wherein this Court has
followed the case of Attorney General v. De Keyser's Royal Hotel, Ltd.[5]
by the House of Lords wherein it is held that the Land Acquisition Act is
the source of power for divesting the claimants of their possession from
their property and further the law enjoins the payment of compensation to
them for the acquisition of their land under the provisions of the L.A.
Act. The process by which the respondent is divested of the land involved
in this case is not permitted by the conditions of grant, but as provided
by the provisions of the L.A. Act.
Further, the learned senior counsel has placed reliance upon Order XL of
the Supreme Court Rules, 1966, (for short, "The Rules, 1966") which states
that if any error is committed in the order by this Court, the procedure
required to be followed by the concerned party is that a review application
is required to be filed and if the review petition is not allowed on the
grounds urged, then curative petition can be filed by the aggrieved party.
It is further contended by him that as observed many a times by this Court,
the applications are filed by the parties seeking clarification/
modification/ recall or rehearing, not because any clarification/
modification is found necessary but because the applicant in reality wants
a review of the judgment and also wants hearing, by avoiding circulation of
the review petition in the Chambers as provided under the Rules, 1966.
Therefore, he has urged that the appellants cannot be permitted either to
circumvent or bypass the circulation procedure and indirectly obtain a
hearing in open Court and get the judgment and order reviewed. This Court
has held time and again that what cannot be done directly should not be
allowed to be done indirectly. The practice of the litigants to overcome
the provisions by filing review petitions under Order XL of the Rules, 1966
by filing application for modification and clarification after hearing has
to be deprecated. In support of this submission, the learned senior counsel
has placed reliance upon the cases Cine Exhibition Pvt. Ltd. v. Collector,
District Gwalior & Ors.[6] (para 6) A.R. Antulay (supra), Delhi
Administration v. Gurdip Singh Uban & Ors. Etc.[7] (para 17) and Ram
Chandra Singh v. Savitri Devi & Ors.[8] (paras 8,12-17), Sone Lal v. State
of U.P.,[9](para 4). Therefore, the learned senior counsel on behalf of the
respondent submits that the application filed by the appellants is not
maintainable, hence the same is liable to be rejected.
With reference to the above said rival legal contentions, we have carefully
perused each one of the rival legal submissions made by the learned
Attorney General, learned Additional Solicitor General and the senior
counsel on behalf of the parties and we proceed to pass the following
order.
The submission made on behalf of the respondent that if there is any error
in law which is apparent on the face of the record, either on the facts or
in law, the same can be corrected by following the procedure as
contemplated under Order XL of the Rules, 1966, as has been considered by
this Court in Cine Exhibition Pvt. Ltd. (supra) (para 6). The observations
made therein are required to be accepted and the legal principle laid down
in that case with reference to Order XL of the Rules, 1966 shall be
followed and the procedure laid down under the Rules cannot be dispensed
with in this case.
Having said so, in view of the relevant legal aspects involved in this
case, we have perused the licence deed of 2.1.1990, giving the right to the
licensee that he shall utilize the land under licence for the purpose for
which it is granted with effect from 1.1.1968, particularly condition No.
6, which reads thus:
"6. If the licensee fails to observe any condition specially mentioned in
the licence, or any provisions of the Andaman and Nicobar Islands Land
Revenue and Land Reforms Regulation or the rules made thereunder and in
force of the time being, the granting authority, may cancel or modify the
licence and resume forthwith the whole or part of the land under licence.
In the event of cancellation or resumption of the licence as aforesaid, no
compensation shall be paid to the licensee."
(emphasis supplied)
The learned Attorney General on behalf of the appellants has rightly placed
reliance upon Section 38 of the Regulation, 1966, in support of the plea
that the ownership of the land upon which the building and any other
structure were existing, ownership of such land always, will be with the
Union Territory of Andaman and Nicobar Islands and is absolutely vested
with the Government.
Further, the licence right granted in favour of the respondent under
Section 146 of the Regulation, 1966, is valid for a period not exceeding 30
years with an option for a further extension for a like period subject to
the approval of the Government. Further, the respondent is not a classified
licensee either under Section 141 or Section 143 of the Regulation, 1966.
But on the other hand, Section 143(a)and (b) of the said Regulation,
clearly state that a person granted licence under clause (ii) of Section
146 of the Regulation, with respect to any agricultural land is a licensee
or a non occupancy tenant. Therefore, the Condition No.6 clearly states
that the licence granted on the land by the Government can be cancelled and
resumed by it. On careful perusal of the acquisition notifications, it is
made very clear that acquisition is only in respect of buildings and
structure existing on the land in respect of which licence right has been
granted in favour of the respondent for a specified period. These facts
were not noticed by the Land Acquisition Collector at the time of passing
of the award. The award was passed in respect of the land, the buildings
and structures which is not permissible in law and compensation of
Rs.3,03,03,567/- awarded in favour of the respondent, for which he is not
entitled to in law, is the legal ground urged on behalf of the appellants
by highlighting various provisions of the Regulation, 1966, along with the
licence granted in favour of the respondent. However, the said part of the
award has been complied with by paying the compensation amount to the
workmen working in the factory of the respondent in pursuance of the award
passed by the Land Acquisition Collector though he is not entitled to the
same as per law. The said fact was not brought to the notice of the
Division Bench of the High Court and this Court at the time of hearing.
Therefore, the learned Attorney General has rightly contended that it is a
mistake of fact. A factual mistake has been committed by this Court in
affirming the order of the High Court in issuing a writ of mandamus to the
appellants for its compliance by holding that the extent of land notified
in the acquisition notifications are not passed because neither the
acquisition proceedings of the land have lapsed nor the possession of the
land was taken by the Government from the respondent. Therefore, the order
passed by the High Court for issuing a writ of mandamus for payment of the
compensation to the respondent in respect of the land has also been
affirmed by the Division Bench of the High Court and this Court in the
civil appeal by passing the judgment and the same is sought to be modified
by the appellants by filing the application.
The procedure prescribed under the Rules, 1966, for the purpose of review
of the judgment and order of this Court on either facts or error in law,
which is apparent on the face of the record, has to be followed. Therefore,
reliance placed upon the judgment of this Court by the learned senior
counsel on behalf of the respondent, in the case of Cine Exhibition Pvt.
Ltd.(supra) and other cases in support of his submissions that the
procedure provided under Order XL of The Rules,1966, shall be followed, the
said cases referred to supra, viz. Sone Lal(para 4), Gurdip Singh Uban &
Ors. (para 17) and Savitri Devi (para Nos. 12-17) are aptly applicable to
the fact situation in support of the respondent.
Having regard to the facts and circumstances of the case, particularly the
legal statutory provisions of the Regulation and public interest involved
in this case, the appellants are given liberty to file review petition
within six weeks. If such review petition is filed, the same is required to
be heard in open Court. When such a review petition is filed, the same may
be placed before the Court to hear the parties after obtaining necessary
orders from the Hon'ble Chief Justice. The review petition may be disposed
of on the merits of the case.
With the above observations and liberty given to the appellants for filing
review petition along with condonation of delay application within six
weeks from the date of receipt of copy of this order, the application,
along with the contempt petitions are disposed of in the above terms, but
without costs.
.....................................................................J.
[V. GOPALA GOWDA]
.....................................................................J.
[C. NAGAPPAN]
New Delhi,
December 11, 2014
ITEM NO.1A-For Judgment COURT NO.11 SECTION XVI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
I.A. No. 7 of 2014 in Civil Appeal No(s). 1810/2009
COLLECTOR OF LAND ACQUISITION & ORS. Appellant(s)
VERSUS
M/S. ANDAMAN TIMBER INDUSTRIES Respondent(s)
WITH
CONMT.PET.(C) No. 263/2014 In C.A. No. 1810/2009
CONMT.PET.(C) No. 264/2014 In C.A. No. 1810/2009
Date : 11/12/2014 These matters were called on for pronouncement of
JUDGMENT today.
For Appellant(s) Ms. G. Indira,Adv.
Mr. K.V. Jagdishvadan, Adv.
Mr. Balasubramaniam, Adv.
Mr. D. S. Mahra,Adv.
M/s. O. P. Khaitan & Co.
Mr. Praveen Kumar,Adv.
For Respondent(s) M/s. O. P. Khaitan & Co.
Mr. Praveen Kumar,Adv.
Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of
the Bench comprising His Lordship and Hon'ble Mr. Justice C. Nagappan.
The appeal along with the application and contempt petitions
are disposed of in terms of the signed Non-Reportable Judgment.
(VINOD KUMAR) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed Non-Reportable judgment is placed on the file)
-----------------------
[1] (1988) 2 SCC 602
[2] (2013) 3 SCC 571
[3] (1968) 2 SCR 892
[4] (2003) 10 SCC 321
[5] [1920] AC 508
[6] (2013) 2 SCC 698
[7] (2000) 7 SCC 296
[8] (2004) 12 SCC 713
[9] (1982) 2 SCC 398
For the Latest Updates
Join Now