COLLECTOR OF LAND ACQUISITION & ORS. Vs. M/S ANDAMAN TIMBER INDUSTRIES LTD. & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Review Petition (Civil), 888 of 2015, Judgment Date: Feb 22, 2016
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (C) NO. 888 OF 2015
IN
CIVIL APPEAL NO. 1810 OF 2009
COLLECTOR OF LAND ACQUISITION & ORS. …APPELLANTS
Vs.
M/S ANDAMAN TIMBER INDUSTRIES & ORS. ……RESPONDENTS
WITH
REVIEW PETITION (C) NO. 890 OF 2015
IN
I.A. NO. 7 OF 2014
IN
CIVIL APPEAL NO. 1810 OF 2009
AND
REVIEW PETITION (C)………… D. NO.1093 OF 2015
IN
I.A. NO. 7 OF 2014
IN
CIVIL APPEAL NO.1810 OF 2009
J U D G M E N T
V. GOPALA GOWDA, J.
Review Petition (C) No. 888 of 2015:
Delay condoned in filing the Review Petition.
2. This Review Petition is filed seeking review of the impugned judgment
and order dated 28.11.2013 passed by this Court in Civil Appeal No. 1810 of
2009, whereby the said appeal was dismissed with a direction to the Review
Petitioners- Appellants to make and publish an award in respect of the
remaining suit land within four months from the date of the impugned
judgment and pay compensation to Respondent No.1. herein. I.A. No. 7 of
2014 was filed by the Review Petitioners-Appellants praying that the order
dated 28.11.2013 be modified and suitable direction be given to the
appellants with regard to the remaining extent of 5.33 hectares of land
regarding which no acquisition proceeding was considered necessary by the
Andaman and Nicobar Administration. The I.A. was disposed of by this Court
vide order dated 11.12.2014, wherein liberty was granted to the Review
Petitioners-Appellants to file Review Petition before this Court within six
weeks, with further direction that the same would be heard in open court
and decided on merits of the case.
3. As the facts of the case are already stated in the decision in Civil
Appeal No. 1810 of 2009 and I.A. 7 of 2014, for the sake of brevity, the
same need not be reiterated herein. The following contentions were advanced
by the learned senior counsel appearing on behalf of the parties in support
of their case:
4. Mr. Mukul Rohatgi, the learned Attorney General, appearing on behalf
of the Review Petitioners-Appellants urged this Court to consider reviewing
the impugned judgment by placing strong reliance upon the lease deed dated
01.09.1960, executed in respect of the property covered in the acquisition
notifications between Krishi Gopalan Silpa Sikshalaya and M/S Andaman
Timber Industries Ltd. (the first respondent herein). The learned Attorney
General also placed reliance upon the license deed dated 02.01.1990
executed in Form AG-3 under Sections 146 (ii) and 164 of the Andaman and
Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 (hereinafter
referred to as the “Regulation, 1966”), by way of which licensing rights
were granted to Respondent No.1 in respect of Survey Nos. 22/3 and 23
measuring 8.86 hectares for commercial purposes, subject to the general
provisions of the Regulation, 1966 and the Rules made thereunder. The
learned Attorney General submits that it is a privilege conferred upon
Respondent no.1, and no absolute interest in the land is created by virtue
of the said license. The license period was for an initial period of 30
years, with the option of a further renewal for a maximum period of 60
years. Further, the said license could be terminated at the will of the
Review Petitioners- Appellants.
5. The learned Attorney General further places strong reliance upon the
notifications under Sections 4(1) and 17(1) of the Land Acquisition Act,
1894 (hereinafter referred to as the “L.A. Act”) issued by the Union
Territory of Andaman and Nicobar Administration dated 23.07.2002 and
24.07.2002 respectively, to show that the building structures, trees and
crops standing on the suit land as described in the Schedule to the said
notifications are required for the public purpose of development of port
related facilities.
6. The learned Attorney General further contends that the Award No. 5-
39/LA/ADM/2002, passed by the Land Acquisition Collector on 26.09.2002 was
infact contrary to the aforementioned acquisition notifications. The
notifications classify the building structures, trees and crops standing on
the land mentioned in the Schedule including Survey Nos. 22/3 and 23 as
commercial properties. Further, the Land Acquisition Collector erred in not
noticing the fact that the acquisition notifications specifically mention
that Respondent No.1 is a licensee and not the owner of the land, and thus
erred in determining the market value of the land as the same is not
legally permissible in law for the reason that the land in question belongs
to the government, on which the licensing rights have been granted in
respect of the land in question for the purpose of establishing timber
industry, therefore, no interest upon the said land has been created in
favour of Respondent No.1. The learned Attorney General contends that the
determination of market value by the Land Acquisition Collector in respect
of the land in question should not have been done and is a mistake of fact.
It is on the basis of this determination of market value that the Writ
Petition No. 197 of 2004 was filed by Respondent No. 1 before the Calcutta
High Court, Circuit Bench at Port Blair, claiming compensation in respect
of the remaining land which was covered under the acquisition notifications
referred to supra. The determination of market value of land which belongs
to the government was erroneous on the part of the Land Acquisition
Collector. The acquisition of land which belongs to the government is
impermissible in law, as has been held by this Court in a catena of
cases, including The Collector of Bombay v. Nusserwanji Rattanji Mistri &
Ors.[1], Special Land Acquisition v. M.S. Seshagiri Rao & Anr.[2] and Meher
Rusi Dalal v. Union of India & Ors.[3]. The learned Attorney General
contends that not bringing this particular factual aspect of the matter to
the notice of the High Court and this Court at the time of examination of
the claim made by Respondent No.1 in the writ proceedings and the Civil
Appeal has resulted in a serious error in law. Hence, this Court can review
its impugned judgment passed in the Civil Appeal.
7. On the other hand, Mr. C.A. Sundaram, learned senior counsel
appearing on behalf of Respondent No.1, M/S Andaman Timber Industries Ltd.
contends that the impugned judgment does not suffer from any infirmity, as
the same is based upon the acquisition notifications and the Award of the
Land Acquisition Collector. The acquisition notifications issued under
Sections 4(1) and 17(1) of the L.A. Act, expressly mention that the total
extent of the land along with the building structures, the trees and crops,
if any standing thereon, described in the schedule is 8.86 hectares. The
learned senior counsel contends that the aforementioned notifications prove
that Respondent No.1 has an interest in the land which has been acquired in
the instant proceedings. Therefore, Respondent No.1 is entitled for grant
of compensation in respect of the land, which claim has rightly been
accepted by the High Court and affirmed by this Court in the impugned
judgment.
8. The learned senior counsel draws our attention to Section 38 of the
Regulation, 1966, which provides that all the lands in the Union Territory
of the Andaman and Nicobar Islands are vested absolutely in the Government
and 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. Section 141 of the Regulation, 1966 classifies tenants into
four categories, namely (i) occupancy tenants (ii) non-occupancy tenants
(iii) grantees and (iv)licensees. Sections 142 to 146 of the Regulation,
1966 further define all the four categories of tenants. Section 146 of the
Regulation confers upon the Chief Commissioner the power to grant licenses.
The learned senior counsel contends that the license granted by the Chief
Commissioner in favour of Respondent No.1 to establish timber industry is a
perpetual license, otherwise called as the Lease and Conveyance Deed as per
‘Exh. P-2’, dated 02.01.1990 executed by the Review Petitioners-Appellants
in favour of Respondent No.1. The learned senior counsel further contends
that a careful reading of Section 162 of the Regulation, 1966 makes it
abundantly clear that the interest of a tenant in his holding or any part
thereof shall be extinguished only in the situations as enumerated under
Clauses (a) to (g) of Section 162.
Clause (d) of the said Section reads as under:
“(d) when the land comprised in the holding has been acquired under any law
for the time being in force, relating to acquisition of land.”
9. The learned senior counsel submits that licensing rights have been
granted in favour of Respondent No.1, is entitled to use the same for
maximum period of 60 years for commercial purpose. The learned senior
counsel further places strong reliance on the various Forms prescribed
under the Regulation, 1966, namely Form AG 1, - for Licence to occupy land
for house site, Form AF for Deed of Grant of Land for Cultivation of Long
Lived Crops, Form AG-2 for License to occupy Agricultural Land, Form AG-3
for License to occupy Land for Non-Agricultural Purpose. Since the said
Forms do not prescribe the period of licensing right after expiry of the
period stipulated in the license deed in the prescribed form, it clearly
support the contention advanced on behalf of Respondent No.1 that since the
license is perpetual in nature, Respondent No.1 has acquired an interest
upon the land in question.
10. With reference to the said rival legal contentions advanced on behalf
of both the parties, we have examined the case of the Review Petitioners-
Appellants to assess whether the impugned judgment is required to be
reviewed.
11. Under the Regulation, 1966, the ownership of the land vests
absolutely in the Government, except by a conveyance executed by the Chief
Commissioner. In the instant case, it is an undisputed fact that the
license has been granted under Section 146 (ii) of Regulation, 1966 under
Form AG3. The said prescribed Form does not stipulate the period of
licensing right. In the absence of stipulation of period, the contention
urged on behalf of Respondent No.1 that it is a perpetual license in
respect of the acquired land is a tenable contention, particularly having
regard to the classes of tenants defined under Section 141 of the
Regulation, 1966 extracted supra. Respondent No.1 has acquired interest in
the land in dispute, in terms of the notifications under Sections 4(1),
4(2) read with Section 17(1) of the L.A. Act, wherein the plots and parcels
of land along with building structures, the trees and crops have been
clearly mentioned. Such an interest could only be extinguished in terms of
Section 162 of the Regulation, 1966. That is to say that the right of
Respondent No.1 could be extinguished only in terms of a notification to
acquire the land. That was done by the Lieutenant Governor of Andaman and
Nicobar Islands, who issued notifications to acquire the land, building
structures including the standing trees and crops. The Award has been
passed on a part of this land. The Award on the remaining 6 hectares of
land was not passed by the Land Acquisition Collector, even though the
entire land including the building structures, the trees and crops had been
acquired for the aforesaid purpose of establishing industry. Not awarding
compensation as provided under Section 11 of the L.A. Act amounts to
deliberate omission in discharge of statutory duty by the Collector,
despite the statutory right vesting in Respondent No.1 for award of
compensation in lieu of losing the holding rights over the land on account
of acquisition of the same by the Government. Therefore, Respondent No.1
rightly approached the High Court praying that the Writ of Mandamus be
issued to the Review Petitioners-Appellants to pass an Award of
compensation in its favour in respect of the remaining land. The High Court
granted the same after consideration of all the relevant facts, documents
and the rival legal contentions urged on behalf of the parties. The Review
Petitioners-Appellants, aggrieved of the impugned judgment and order
granting relief in favour of Respondent No.1, challenged the correctness of
the same before this Court in Civil Appeal. This Court rightly dismissed
the Civil Appeal, affirming the impugned judgment therein after considering
the undisputed fact that the interest upon the land in question has been
acquired by the Lieutenant Governor of Andaman and Nicobar Islands for the
purpose of establishment of industry.
12. The contention urged on behalf of the Review Petitioners-Appellants
that the Respondent No.1 did not acquire interest in the land in respect of
which licensing right given for establishing timber industry and Section
146 of Regulation, 1966 is a privilege traceable to Section 52 of the
Indian Easement Act, 1882 is misplaced for the reason that Sections 38,
141, 145 and 146 read with Section 162 of the Regulation, 1966 and the
prescribed Forms for different purposes, clearly show that the licensees
are also tenure holders as per the classification under Section 141 of the
Regulation, 1966, as has been rightly contended by Mr. C.A. Sundaram,
the learned senior counsel appearing on behalf of M/S Andaman Timber
Industries Ltd.
13. The contention urged by the learned Attorney General that the license
is a privilege, granted in favour of Respondent No.1 to utilise the land
for construction of building and establishing timber industry is wholly
untenable in law for the reason that licensee is one of the classes of
tenants as specified under Section 161 of the Regulation, 1966. The same is
perpetual in nature and hence the contention urged on behalf of the Review
Petitioners-Appellants that since no interest in favour of Respondent No.1
has been created upon the land in question vests in the Government is
wholly untenable in law. The learned Attorney General placed reliance upon
the judgment in Saraswati Devi v. Delhi Development Authority & Ors.[4]
wherein the four Judge Bench judgment of this Court in the case of
Nusserwanji Rattanji Mistri (supra) has been adverted to and distinguished,
and adverted to Delhi Administration v. Madan Lal Nangia[5]
wherein this Court held that merely because the properties vest in the
Custodian as an evacuee property, it does not mean that the same cannot be
acquired for some other purposes. In the case of Saraswati Devi (supra),
this Court observed that at the time of acquisition of evacuee property
under Section 12 of the Displaced Persons (Compensation and Rehabilitation)
Act, 1954, if a private person has an interest in such property, then the
interest of the private person can be acquired under the L.A. Act even
though the land is owned by the Government.
14. In view of the aforesaid statements of law laid down by this Court in
Saraswati Devi (supra) after adverting to the four Judge Bench judgment in
Nusserwanji Rattanji Mistri case (supra), holding that even if the land
absolutely vests with the State, interest of private individuals can
certainly be created on the same by executing conveyance in their favour.
The said interest of the Respondent No.1 has rightly been recognised by
the Collector of Land Acquisition after issuing notifications which is
traceable to Section 3(b) of the L.A. Act which states as hereunder :-
“3(b). The expression “person interested” includes all persons claiming an
interest in compensation to be made on account of the acquisition of land
under this Act; and a person shall be deemed to be interested in land if he
is interested in an easement affecting the land.”
15. Further, the learned Attorney General in support of his submissions
places reliance upon the Division Bench judgment of the Mysore High Court
in the case of M.S. Seshagiri Rao & Anr v. Special Land Acquisition &
Rehabilitation Officer, Sagar[6], which judgment has been affirmed by this
Court in the case of Special Land Acquisition & Rehabilitation Officer,
Sagar v. M.S. Seshagiri Rao & Anr.[7], wherein it was held as under :
“3. The Government of Mysore did not purport to exercise the power reserved
by the terms of the grant, and adopted the procedure prescribed by the Land
Acquisition Act. The High Court observed, relying upon the decision of the
House of Lords in Attorney-General v. De Kayser's Royal Hotel Ltd.(1) that
the Government could not, after adopting the procedure prescribed by the
Land Acquisition Act, seek to resort to the conditions of the grant and
claim that no compensation for acquisition of the land was payable. It is
true that after obtaining possession of the land in pursuance of statutory
authority under Section 17, the Government of Mysore could not seek to
exercise the option conferred by the terms of the grant. But on that
account in assessing compensation payable to the grantees, existence of the
condition which severely restricted their right could not be ignored. The
grantees were entitled to compensation for the, land of which the ownership
was vested in them. The measure of that compensation is the market value of
the land at the date of the notification, and the measure of that market
value is what a willing purchaser may at the date of the notification under
S.4 pay for the right to the land subject to the option vested in the
Government.
4. The High Court also placed reliance upon the judgment of the Madras High
Court in The State of Madras v. A.Y.S. Parisutha Nadar. In that case the
main question decided was whether it was open to a claimant to compensation
for land under acquisition to assert title to the land notified for
acquisition as against the State Government when the land had become vested
in the Government by the operation of the Madras Estates (Abolition and
Conversion into Ryotwari) Act 26 of 1948. On behalf of the State it was
contended that once an estate is taken over by the State in exercise of its
powers under the Estates Abolition Act, the entire land in the estate so
taken over vested in the State 'in absolute ownership, and that no other
claim of ownership in respect of any parcel of the land in the estate could
be put forward by any other person as against the State Government without
obtaining a ryotwari patta under the machinery of the Act. The High Court
rejected that contention observing that the Government availing itself of
the machinery under the Land Acquisition Act for compulsory acquisition and
treating the subject-matter of the acquisition as not belonging to itself
but to others, is under an obligation to pay compensation as provided in
the Act, and that the Government was incompetent in the proceeding under
the Land Acquisition. Act to put forward its own title to the property
sought to be acquired so as to defeat the rights of persons entitled to the
compensation. The propositions so broadly stated are, in our judgment, not
accurate. The Act contemplates acquisition of land for a public purpose. By
acquisition of land is intended the purchase of such interest outstanding
in others as clog the right of the Government to use the land for the
public purpose. Where the land is owned by a single person, the entire
market value payable for deprivation of the ownership is payable to that
person: if the interest is divided, for instance, where it belongs to
several persons, or where there is a mortgage or a lease outstanding on the
land, or the land belongs to one and a house thereon to another, or limited
interests in the land are vested in different persons, apportionment of the
compensation is contemplated. The Act is, it is true, silent as to the
acquisition of partial interests in the land, but it cannot be inferred
therefrom that interest in land restricted because of the existence of
rights of the State in the land cannot be acquired. When land is notified
for acquisition for a public purpose and the State has no interest therein,
market value of the land must be determined and apportioned among the
persons entitled to the land. Where the interest of the owner is clogged by
the right of the State, the compensation payable is only the market value
of that interest, subject to the clog.
5. We are unable to agree with the High Court of Madras that when land is
notified for acquisition, and in the land the State has an interest, or the
ownership of the land is subject to a restrictive covenant in favour of the
State, the State is estopped from setting up its interest or right in the
proceedings for acquisition. The State in a proceeding for acquisition does
not acquire its own interest in the land, and the Collector offers and the
Civil Court assesses compensation for acquisition of the interest of the
private persons which gets extinguished by compulsory acquisition and pays
compensation equivalent to the market value of that interest. There is
nothing in the Act which prevents the State from claiming in the proceeding
for acquisition of land notified for acquisition that the interest proposed
to be acquired is a restrictive interest.”
16. The aforesaid judgments have no application to the fact situation and
the reliance placed upon the same by the learned Attorney General is
misplaced. For the reasons stated supra, no case is made out in this Review
Petition for review of the impugned judgment passed in Civil Appeal No.
1810 of 2009 by this Court as the same does not suffer from any error of
law which requires interference by this Court. Hence, the review petition
must fail and is accordingly dismissed.
Review Petition (C) No. 890 of 2015 in I.A. No. 7 of 2014 in C.A. No. 1810
of 2009
17. In view of dismissal of Review Petition (C) No. 888 of 2015, this
review petition is disposed of.
Review Petition (C)……D. No. 1093 of 2015 in I.A. No. 7 of 2014 in C.A. No.
1810 of 2009
18. Permission to file Review Petition is granted.
19. We have heard Mr. Ashok K. Parija, the learned senior counsel
appearing on behalf of the ATI Union Non Political Labour Union, who adopts
the submissions advanced by Mr. C.A. Sundaram, the learned senior counsel
appearing on behalf of M/s Andaman Timber Industries Ltd. in Review
Petition (C) No.888 of 2009. Mr. Ashok K. Parija further submits that the
respondent Company be directed that the amount of compensation which will
be received by it must be paid to the workmen towards the arrears of their
wages and terminal benefits etc., as the same amounts to first charge on
the property acquired under Section 549A of the Companies Act, 1956.
Accordingly, his submissions are taken on record and it is open for the ATI
Union to work-out the workmen’s right to get the arrears including terminal
benefits out of the compensation amount that will be determined by the
Collector in respect of the acquired property. The Review Petition is
accordingly disposed of.
All pending applications in the Review Petitions are disposed of.
…………………………………………………J.
[V. GOPALA GOWDA]
…………………………………………………J.
[C. NAGAPPAN]
New Delhi,
February 22,2016
-----------------------
[1]
[2] 1955 SCR (1) 1311
[3]
[4] 1968 SCR (2) 892
[5]
[6] (2004) 7 SCC 362
[7]
[8] (2013) 3 SCC 571
[9]
[10] (2003) 10 SCC 321
[11]
[12] AIR 1965 Mysore 222
[13]
[14] AIR 1968 SC 1045
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