IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE [ENTITY] MONDAY, THE 15TH DAY OF DECEMBER 2014/24TH AGRAHAYANA, 1936 WP(C).No. 1480 of 2011 (H) PETITIONER(S): SOPHY RAJAN, ANAMKOTTU KOLANI POST, THODUPUZHA. BY ADVS.SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY RESPONDENT(S): 1. THE LAND ACQUISITION OFFICER & SPECIAL TAHSILDAR (LA), THODUPUZHA P.O-685 584. 2. THE ASST. EXECUTIVE ENGINEER P.W.D ROADS, THODUPUZHA P.O- 685 584. 3. THE TALUK SURVEYOR, THODUPUZHA P.O PIN-685 584. BY GOVERNMENT PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.1480/2011 APPENDIX PETITIONER's EXHIBITS: P1:A TRUE COPY OF THE SALE DEED DATED 9.6.1998. P2:A TRUE COPY OF THE NOTICE DATED 10.12.2004. P3:A TRUE COPY OF THE NOTICE IN FORM NO.6 DATED 17.9.2010. P4:A TRUE COPY OF THE PROCEEDINGS DATED 11.10.2010 BY THE 2ND RESPONDENT. P5:A TRUE COPY OF THE REPRESENTATION DATED 11.1.2011 BY THE PETITIONER. P6:A TRUE COPY OF THE JUDGMENT DATED 27.7.2005 IN [CASE NUMBER]. RESPONDENTS' EXHIBITS:- R2(A):A TRUE COPY OF THE SURVEY SKETCH PREPARED BY THE TALUK SURVEYOR, THODUPUZHA. R2(B):THE PHOTOGRAPH SHOWING THE PRESENT STAGE OF THE CONSTRUCTION OF THE DRAIN. R2(C):THE PHOTOGRAPH SHOWING THE PRESENT STAGE OF THE CONSTRUCTION OF THE DRAIN. TRUE COPY P.A.TO JUDGE "C.R" [ENTITY], J. W.P.(C). No.1480 OF 2011 Dated this the 15th day of December, 2014 JUDGMENT
Whether Government can be compelled to acquire land which is/was vested in it or over which it got a pre-existing right or interest? Whether a dispute as to pre-existing right or interest of the State Government in the property sought to be acquired is a dispute capable of being adjudicated upon or referred to the Civil Court for determination under [SECTION] or [SECTION] of the [ACT]? Whether a person in possession of government puramboke can claim that he perfected the title over the same and claim for a reference of the said question under [SECTION] or [SECTION] of the [ACT] when proceedings are initiated to conduct its survey and demarcation, especially in the absence of initiation of acquisition proceedings and passing of an award under [SECTION] of the [ACT]? These questions crop up for consideration in the captioned writ petition in the following factual backdrop:-
The petitioner claims to be the absolute owner in possession of 17 cents of registered holding together with 3 cents of government puramboke land and an old building thereon, in survey Nos.572/7/1, 572/7/2 and [SECTION]4/1/2 of Thodupuzha village. According to the petitioner, she purchased the said properties as per Ext.P1 registered sale deed and the description of the property in Ext.P1 takes in government puramboke land having an extent of 3 cents as virivu, as well. It is the contention of the petitioner that the said extent of government puramboke land has been in the possession and enjoyment of her predecessors-in-interest uninterruptedly, openly, peacefully as of right and hostile to the whole world including the Government from 1952 onwards. A notification dated [CASE NUMBER].9.2004 under [SECTION] of the [ACT] was issued in connection with the development of Ponkunnam-Thodupuzha road. An extent of .2551 Ares of land in survey No.572 was acquired from the possession of the petitioner pursuant to the said notification. Ext.P2 notice dated 10.12.2004 was served on the petitioner in connection with the said acquisition. Subsequently, the Taluk Surveyor, Thodupuzha served Ext.P3 notice dated 17.9.2010 to the petitioner in terms of Form No.6 of [SECTION] of Survey Manual. The petitioner was intimated that a survey would be conducted to fix the road puramboke in survey No.572/7/1 based on the instruction from Assistant Engineer, P.W.D. The petitioner was also informed that the subdivisions noted below thereunder would be taken up for demarcation and survey on 25.9.2010 or soon after and she was required to render necessary help by clearing the thicket, during the survey. For further particulars the petitioner was advised to apply to the Taluk Surveyor assuring all reasonable assistance in the matter from him. Evidently, in this case, the very case of the petitioner herself is that 3 cents of government puramboke is in her possession and that she perfected its title by adverse possession. It is not the case of the petitioner that the said extent of government puramboke in her possession, has now, been included in [SECTION] notification issued under the [ACT] or that it formed part of .2551 Ares acquired from her possession after following the procedures for acquisition. What was actually proposed under Ext.P3 is only survey and demarcation of the boundaries of the property to demarcate the puramboke. Thus, it is evident that as on today, it is not involved in any acquisition proceedings under the [ACT]. Ext.P3 was followed by Ext.P4 notice dated 11.10.10 from the second respondent informing her that the boundary of the road near her property was already demarcated by the revenue authorities and, therefore, requested her to hand over possession of government puramboke to the Department for the purpose of construction of road.
The petitioner submitted Ext.P5 objection pursuant to the receipt of Ext.P4 and in such circumstances, it could not be construed as an objection raised in a land acquisition proceedings. In Ext.P5, the petitioner took up the contentions as hereunder:-
"1. I have already perfected my title over the property in question which was once Government puramboke land.
2. The alleged survey of the said property conducted by the Revenue authorities is patently wrong. Survey has to conducted afresh, by a higher authority.
3. The alignment of the Muvattupuzha -
Punaloor high way was fixed at this point, way back in the year 2004 and the requisite land was acquired by the Government. The present additional requirements is per se illegal and this made with malafied (sic., mala fide) intention. By any stretch of imagination, such a strip of land tapering towards the mouth is not required for the highway. The property now sought to be required is situated far away from the adjoining bridge. If PWD has any bonafide intention to straighten the highway, land has to be acquired from the northern side of the highway and not from its southern side."
(underline supplied)
2. A careful consideration of Ext.P5 would reveal that besides seeking consideration of the above extracted objections, the petitioner made a further request that in case of bona fide requirement of additional land from her holding, the required land may be acquired in accordance with the provisions of the [ACT] and the rules framed thereunder. It is to buttress her contentions and claim that the petitioner produced Ext.P6 judgment in W.P.(C). No.20976 of 2005. This writ petition has been filed in the said circumstances virtually, apprehending dispossession of the said property without considering Ext.P5 and without resorting to the provisions of the [ACT], pursuant to the proposal in Ext.P4.
3. It is the contention of the petitioner that her claim of title over the said extent of government puramboke by prescription is a question, necessarily, requiring an adjudication by the [ACT] in terms of [SECTION] and [SECTION] of the [ACT] This writ petition has been filed mainly with the prayer to issue a writ in the nature of certiorari quashing Ext.P4 and for issuance of a writ in the nature of mandamus commanding the respondents to pass final orders on Ext.P5 representation. Issuance of a writ in the nature of mandamus commanding respondents not to proceed further pursuant to Ext.P4 is also sought for. The contention of the petitioner is that the proposed action to dispossess her from the aforesaid government puramboke without recourse to the provisions under the [ACT] runs contrary to the principles laid down by this Court in Ext.P6 judgment.
4. A counter affidavit has been filed by the second respondent refuting the contentions of the petitioner and contending that the encroachment over the aforesaid extent of government puramboke is recent and the petitioner is liable to vacate the said puramboke. It is further stated therein that the Assistant Engineer, Roads Section, Thodupuzha made a request to the Tahsildar, Thodupuzha to demarcate the existing portion of the Pala- Thodupuzha PWD Road and it was thereafter that the Taluk Surveyor issued Ext.P3 notice to the petitioner in Form No.6 of [SECTION] of the Survey Manual. In the said survey, it was found that 0.0263 hectors of PWD road puramboke have been unauthorisedly and illegally encroached upon by the petitioner and Ext.R2(a) survey sketch prepared by the Taluk Surveyor, Thodupuzha would also show the extent of encroachment of government puramboke land by the petitioner. In such circumstances, the Assistant Engineer, Roads Section, Thodupuzha required the petitioner to remove the encroachments made thereon. It is further stated therein that the petitioner had not taken up the matter regarding survey any further before the concerned statutory authorities and as such, the survey had become final. The contention of the petitioner that she had perfected the title over the government puramboke land by adverse possession and limitation is also denied. The contention of the petitioner that the dispute as regards the ownership in respect of such a strip of land will be a dispute squarely comes within the purview of [SECTION] and [SECTION] of the [ACT] warranting the reference of the said question to the [ACT], is also denied. In paragraph 4 of the counter affidavit, it has been stated thus:-
"It is most humbly submitted that the petitioner has put up steps for entering to his shop and also covered the same by way of a roof by encroaching into the road margin. The area is required for construction of drain for draining out rain water and waste water. The alignment of the same has been fixed by experts and as laid down by this Hon'ble Court in [PRECEDENT], such matters in relation to fixing of alignment cannot be subjected to judicial review unless it is due to malafides or colourable exercise of power. The petitioner has not pleaded any case of malafides or bias or colourable exercise of power on the part of the respondents. It is most humbly submitted that the construction of such drain on the road margin upto the boundary of the petitioners business concern is complete and the said work has been stalled due to the unethical stand adopted by the petitioner."
5. Evidently, the aforementioned contention of the petitioner for a reference of the said question to the [ACT] is resisted by the respondents in the counter affidavit in the light of the decisions of the Hon'ble Apex Court in [PRECEDENT], [PRECEDENT], State of Orissa and others v. [PRECEDENT] and others (1995 Supplementary (3) SCC 249, [ENTITY] v. State of Bihar (AIR 2003 SC 942 and M/s.Ahad Brothers v. State of Madhya Pradesh and others (AIR 2005 SC
355).
6. In [PRECEDENT]'s case (supra), the Hon'ble Apex Court held that there could be no question of Government acquiring what is its own. In Dr.[PRECEDENT]'s case (supra), the three-Judges Bench by a majority of 2 : 1 laid down the following principles :
(i) There are two provisions in the Act under which the Collector can make a reference to the Court, namely, [SECTION] and [SECTION]. The powers under the two sections are distinct and may be invoked in contingencies which do not overlap. A person shown in that part of the award which relates to apportionment of compensation who is present either personally or through a representative or on whom notice is issued under [SECTION], must if he does not accept the award, apply to the Collector to refer the matter to the Court under [SECTION] within the time prescribed thereunder. But a person who has not appeared in the acquisition proceedings before the Collector may, if he is not served with notice of filing, raise a dispute as to apportionment or as to the persons to whom it is payable and apply to the Court for a reference under [SECTION], for determination of his right to compensation which may have existed before the award, or which may have devolved upon him since the award. For a reference under [SECTION], no period of limitation is prescribed.
(ii) It is not predicated of the exercise of the power to make a reference under [SECTION] that the Collector has not apportioned the compensation money by his award.
(iii) The award made by the Collector under [SECTION] is not the source of the right to compensation. An award is strictly speaking only an offer made by the Government to the person interested in the land notified for acquisition; the person interested is not bound to accept it and the Government can also withdraw the acquisition u/[SECTION]. It is only when possession of the land has been taken by the Government u/[SECTION] that the right of the owner of the land is extinguished. Therefore the appellant's contention that title to compensation is derived solely from and on the date of the award could not be accepted.
(iv) The liability of the Government u/[SECTION] to pay compensation to the person entitled thereto under the award does not imply that only the persons to whom compensation is directed to be paid under the award may raise a dispute u/S.
[SECTION]. The scheme of apportionment by the Collector under [SECTION] is conclusive only between the Collector and the persons interested and not among the persons interested.
Payment of compensation u/[SECTION] to the persons declared in the award to be entitled thereto discharges the State of its liability to pay compensation leaving it open to the claimant to compensation to agitate his right in a reference u/[SECTION] or by a separate suit.
(v) Under the [ACT] the title of the appellant to the land noticed for acquisition became vested in the State and therefore the right to compensation for the land acquired devolved upon the State. A dispute then arose between the State Government and the appellant "as to the persons to whom"
compensation was payable. The State had no right to the compensation payable for the land under a title existing before the date of the award of the Collector and no application could be made by it as a person interested within the meaning of [SECTION]. But a dispute between the appellant and the State as to their conflicting claims to the compensation money was clearly a dispute which could be referred u/[SECTION] of the Act to the Court. There is nothing in [SECTION] which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of the land has since the award, devolved.
7. In [PRECEDENT]'s case (supra), virtually the decision in [PRECEDENT]'s case (supra) was restated holding that Government could not acquire its own land in terms of the provisions of the [ACT] In [ENTITY]'s case (supra), the Hon'ble Apex Court again held the same view. In M/s.Ahad Brothers' case (supra), it was held that the State could not be a person interested to agitate any claim either under [SECTION] or under [SECTION] of the [ACT] It was further held that the reference court could not decide the question of title of State over acquired land. In such circumstances it is contended that Ext.P6 judgment cannot be taken as a precedent in establishing the claim and contentions of the petitioner. True that as per Ext.P6 judgment, this Court directed the second respondent thereunder to draw up a reference under [SECTION] of the [ACT] as amended by [ACT] in respect of the land in question. A scanning of Ext.P6 judgment would undoubtedly show that the case of the petitioner therein, with reference to [SECTION] and [SECTION] of the [ACT] for reference was not considered, in detail, by this Court. So also, it is evident that the said judgment was rendered not relying on any authority on the subject. In the decision in [PRECEDENT], the Hon'ble Apex Court held that mere directions in a case without laying down the principle of law did not constitute a precedent. Their Lordships were considering the precedential value of a judgment of the Hon'ble Apex Court and held that such a judgment could be treated as only one given under [SECTION] of the [ACT]. The same view was taken in a subsequent decision in [PRECEDENT]. True that the power under [SECTION] is not available to High Courts. The decision to the effect that a judgment carrying mere directions issued taking into account the facts and circumstances of a case, without laying down a law did not constitute a precedent, is to be borne in mind. At any rate, in respect of a matter where the decisions of the Hon'ble Apex Court covers the same this Court is bound by the decisions of the Hon'ble Apex Court. A careful analysis of Ext.P6 would reveal that though a direction was given to the second respondent therein to draw up a reference under [SECTION] of the [ACT] as amended by [ACT] this Court had not laid down any principle of law in order to constitute a precedent. True that certain further directions were also issued under Ext.P6. Now, I will refer to [SECTION] of the [ACT], 1894:-
"[SECTION].Dispute as to apportionment When the amount of compensation has been settled under [SECTION], if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may prefer such dispute to the decision of the Court."
8. Under [SECTION] of the [ACT] all kinds of disputes regarding acquisition of a land are not referable. A careful scanning of the said section in the light of the decision in [ENTITY]'s case (supra) would reveal the said position. In the said decision it was held thus:-
"Under [SECTION] the only disputes which are referable are:(i) any dispute as to the apportionment of the amount of compensation or any part thereof, or
(ii) a dispute as to the persons to whom the amount of compensation or any part thereof is payable. A dispute as to the measurement of the land or as to the quantum of compensation or a dispute of a nature not falling within [SECTION], can either (sic.neither) be referred by the Collector under [SECTION] of the Act nor would the civil court acquire jurisdiction to enter into and determine the same."
(emphasis added)
9. In [SECTION] of the Act, the word 'when' appearing in the first clause and the words 'if any dispute arises' in the second clause would undoubtedly suggest that in order to make it referable under [SECTION] of the [ACT] the dispute must be one that arose when the amount of compensation has been settled under [SECTION] of the [ACT] i.e., the dispute must be one raised since the award in relation to the land in controversy. As a matter of fact, [SECTION] also envisages only a post-award situation and the said position is very much evident from a reading of [SECTION] of the [ACT] and paragraph 22 of the decision in [ENTITY]'s case (supra) which reads thus:-
" Under [SECTION], the Collector is obliged to tender payment of the compensation to the persons interested in accordance with the award. The Collector is obliged to withhold distribution of the awarded amount to the awardee or amongst the awardees and deposit the amount of compensation in the reference Court in three situations :-
(i) if awardees do not consent to receive the amount of compensation,
(ii) if there be no person competent to alienate the lands, or
(iii) if there be any dispute as to the title to receive the compensation or as to the apportionment of it."
10. Thus, the provisions under [SECTION] of the [ACT] and the above extracted portion from [ENTITY]'s case (supra) would go to show that the said provision got no application at all in the facts and circumstances of this case. As noticed hereinbefore, the pleadings of the petitioner would reveal that the petitioner has got in her possession 3 cents of government puramboke. Still, the case of the petitioner is that the proposal to survey and demarcate the boundaries of the property comprised in Sy.No.572/7-1 is patently illegal and according to her, though 3 cents were government puramboke she perfected title over the same by adverse possession and limitation and therefore, if it is needed for any public purpose like road widening Government have to acquire it by resorting to the procedures under the [ACT]. I am of the view that the hollowness of those contentions could better be revealed by an in-depth analysis of the decision in [ENTITY]'s case (supra). In [ENTITY]'s case (supra), the land in controversy having an extent of 36.85 acres was notified for acquisition for the project 'Phulsari Safathi Wala,' under [SECTION] of the [ACT]. After complying with all the statutory procedures an award in respect of the said property was passed by the District Collector under [SECTION] of the [ACT] to pay compensation to the appellant Smt.[ENTITY]. According to the appellant, the said land was part of Zamindari estate and before the vesting of the zamindari the land was settled by the ex-landlord in the name of one [ENTITY] by means of a registered deed of settlement dated 24.4.1954 which is a raiyati settlement. The appellant purchased the land in question from the said [ENTITY] through a registered deed dated 7.9.1962 and then developed it and kept it under cultivation. Mutation was also effected in her name. Later, on 18.5.1979, the Circle Officer issued a notice to her under [SECTION] of the [ACT] calling upon her to explain why the encroachment should not be removed treating her as an encroacher. The said notice was issued on the premise that consequent upon vesting of [ENTITY] the said land had stood vested in the State of Bihar and was, therefore 'public land' within the meaning of clause (3) of the aforesaid Act. The appellant challenged the said notice before the High Court contending that she was raiyat of the land in question and therefore, she could be ejected therefrom only in accordance with the provisions of the [ACT] and at the same time, none of the specified grounds permissible for such ejectment existed in her case. In such circumstances, she contended that the notice was liable to be quashed. The High Court upheld the contentions and quashed the proceedings initiated against her. In the year 1981, proceedings under [SECTION] of the [ACT] proposing to annul the settlement of land in question in favour of [ENTITY], the vendor of the appellant, were initiated on the premise that the settlement of the land in his favour as per registered deed dated 24.4.1954 was done with the object of defeating the provisions of the Act. Accordingly, an enquiry was conducted. The appellant Smt.[ENTITY], then approached the High court of Patna seeking quashment of the said proceedings by filing [CASE NUMBER]. It was pending the said proceedings that [SECTION] notification in respect of the land in question was issued on 16.2.1982. As noticed hereinbefore, the District Collector had passed an award in favour of the appellant determining the quantum of compensation to the appellant. Thereafter, on 7.1.1985, the Collector (Additional Collector, exercising the powers of Collector) passed an order holding that the land had earlier vested in State and hence no award directing payment of compensation was called for. The appellant challenged the said order also before the High Court and the said writ petition was allowed and a writ of mandamus was issued to the Collector to prepare the award in the name of the appellant. The following observation made in the said order of the High Court was extracted in [ENTITY]'s case (supra):-
"if there be any dispute thereafter, the matter be referred to the Civil Court under [SECTION] and [SECTION] of the [ACT] for adjudication of any claim in accordance with law." The order dated 7-1-1985 passed by Additional Collector, Lohardaga was directed to be quashed. On 19-2-1986, the Collector (Land Acquisition) prepared an award in the name of Smt. [ENTITY] directing the amount of compensation as determined by him to be paid to Smt. [ENTITY], the appellant.
11. After the period fixed for seeking a reference to the Civil Court under [SECTION] or [SECTION] of the [ACT] fixed by the High Court of Patna, the Circle Officer, [ENTITY] filed an application before the Collector seeking a reference to the Civil Court stating that a dispute existed between the Circle Officer, [ENTITY] (on behalf the State of Bihar) and the appellant, Smt.[ENTITY] as to the title over the acquired land and that dispute is as to whether the title to the land vested in the appellant so as to entitle her to get compensation and whether her title stood extinguished in view of the vesting of the land in the state. Later, such a reference was made and it was registered and numbered in the civil court. As per order dated 6.9.1986, the civil court rejected the reference and held that Smt.[ENTITY] was a raiyat of the land and therefore, the direction to prepare award of compensation was just and legal. Later, as per order dated 25.3.1987, the High Court allowed [CASE NUMBER] challenging the proceedings initiated under [SECTION] of the [ACT]. As a consequence, the effort of the State seeking annulment of settlement and cancellation of the Zamabandhi entries standing in the name of the appellant had failed. Meanwhile, against the order of the Civil Court dated 6.9.1986, referred above, the State preferred an appeal to the High Court. A learned Judge of the High Court affirmed the order of the Civil Court and against it a Letter Patent Appeal was filed by the State. The Division bench framed five questions of law and directed to place the matter before the Chief Justice to be placed for constituting a Full Bench to answer them. One of the questions thus framed was: "Whether the reference under [SECTION] of the [ACT] was maintainable at the instance of the State of Bihar?" The said question as also the other four questions of law, were answered by the Full Bench against the appellant-Smt. [ENTITY]. The Civil Appeal that culminated in the decision in [ENTITY]'s case (supra) was filed by her before the Hon'ble Apex Court in the said circumstances. Paragraph 10 in [ENTITY]'s case (supra) would reveal the question that arose for consideration and considered by the Hon'ble Apex Court in the aforesaid factual backdrop and it reads thus:-
"The sole question which arises for decision in this appeal centers around the question referred to hereinabove, i.e., whether in the facts and circumstances of the case a reference under [SECTION] of the Act was competent ? In other words, the core question is - when the State proceeds to acquire land on an assumption that it belongs to a particular person, can the award to be called into question by the State seeking a reference under [SECTION] of the Act on the premises that the land did not belong to the person from whom it was purportedly acquire and was a land owned by the State having vested in it, consequent upon abolition of proprietary rights, much before acquisition ?
12. The Hon'ble Apex Court considered the relevant statutory provisions and various authorities such as [PRECEDENT]'s case (supra), [PRECEDENT]'s case (supra) during the consideration of [ENTITY]'s case (supra) and held:-
"The power to make an award under [SECTION] and to make a reference under [SECTION] or [SECTION] of the Act is a statutory power. The sweep of jurisdiction of court to determine the disputes is also statutory and is controlled by the bounds created by [SECTION] or [SECTION] whereunder the reference has been made to the court. The power has to be exercised to the extent to which it has been conferred by the statute and on availability of pre-existing conditions on the availability of which and which alone the power can be exercised."
(emphasis added)
13. The Hon'ble Apex court has also referred to the definition of the expression 'persons interested' under [SECTION] of the [ACT] which reads thus:-
"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"
14. After considering the relevant provisions and the aforementioned decisions it was held in [ENTITY]'s case (supra) thus:-
"To sum up the State is not a "person interested" as defined in [SECTION] of the Act. It is not a party to the proceedings before the Collector in the sense, which the expression 'parties to the litigation' carries. The Collector holds the proceedings and makes an award as a representative of the State Government. Land or an interest in land pre-owned by State cannot be subject-matter of acquisition by State the question of deciding the ownership of State or holding of any interest by the State Government in proceedings before the Collector cannot arise in proceedings before the Collector (as defined in [SECTION] of the Act). If it was a government land there was no question of initiating the proceedings for acquisition at all. The Government would not acquire the land, which already vests in it. A dispute as to pre-existing right or interest of the State Government in the property sought to be acquired is not a dispute capable of being adjudicated upon or referred to the Civil Court for determination either under [SECTION] or [SECTION] of the Act. The reference made by the Collector to the Court was wholly without jurisdiction and the Civil Court ought to have refused to entertain the reference and ought to have rejected the same. All the proceedings under [SECTION] of the Act beginning from the reference and adjudication thereon by the Civil Court suffer from lack of inherent jurisdiction and are therefore a nullity liable to be declared so."
(emphasis added) Paragraph 41 thereunder also assumes much relevance and it reads thus:-
However, we would like to clarify our decision by sounding two notes of caution. Firstly, the quashing of the proceedings under [SECTION] of the [ACT] would not debar the State from pursuing such other legal remedy before such other forum as may be available to the State Government and on the merits and the maintainability thereof we express no opinion herein. Secondly, the situation in law would have been entirely different if the title of the appellant would have come to an end by any event happening or change taking place after the making of the award by the Collector as was the case in [PRECEDENT] title of Dr. [ENTITY] had come to an end by change of law referable to a date subsequent to the making of the award. In this context it was held- " there is no reason why the right to claim a reference of a dispute about the person entitled to compensation may not be exercised by the person on whom the title has devolved since the date of the award and "there is nothing in [SECTION] which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of land has since the award, devolved".
(underline supplied)
15. Thus, the decision of the Hon'ble Apex court in [ENTITY]'s case (supra) would go to show that the Collector holds the proceedings and makes an award as a representative of the State Government and land or interest in and pre-owned by State cannot be subject matter of acquisition by State and the question of deciding the ownership of State or holding of any interest by the State Government also cannot be a subject matter in proceedings before the Collector. Such questions also cannot be referred for adjudication and in unambiguous terms it was held therein thus:-
"If it was a Government land there was no question of initiating the proceedings for acquisition at all. The Government would not acquire the land, which already vests in it. A dispute as to pre-existing right or interest of the State Government in the property sought to be acquired is not a dispute capable of being adjudicated upon or referred to the Civil Court for determination either under [SECTION] or [SECTION] of the Act."
(emphasis added)
16. Evidently, all the proceedings under [SECTION] of the [ACT] beginning from the reference and adjudication thereon by the Civil Court were declared as nullity by the Hon'ble Apex Court based on such conclusions and findings in [ENTITY]'s case (supra).
17. In the case on hand, the petitioner herself admits the position that 3 cents of government puramboke is in her possession. The contention is that the Government puramboke in question has been in possession and enjoyment of her predecessors-in-interest and she continues with its possession pursuant to purchase of properties as per Ext.P1 and that the said extent of puramboke is also included in the said sale deed and as such openly, uninterruptedly, peacefully and as matter of right and hostile to the whole world she perfected the title in respect of puramboke land in question by adverse possession and limitation. In this context, it is to be noted that in the counter affidavit filed on behalf of the second respondent, the said claim was strongly refuted. It is specifically stated in paragraph 2 of the counter affidavit that the petitioner cannot claim that she has been in possession of the said puramboke land as of right and hostile to the Government from 1952 onwards and now only the petitioner or her predecessors had asserted a title over the Government puramboke land in question to the knowledge of the Government. At best, it could be taken as unauthorised encroachment over the Government puramboke land in the recent and immediate past and therefore, the petitioner is liable to vacate it honouring Exts.P3 and P4. Even according to the petitioner, the land in question covered by the impugned notice was a Government puramboke land. While the petitioner asserts that she had perfected the title, the respondents strongly refuted the same and contends that it is only a recent encroachment. When that be the disputatious facts, certainly, it cannot be decided in a writ proceedings. That apart, going by the decisions referred hereinbefore, there can be no question of government acquiring its own land and further that the State could not be 'a person interested' to agitate any such claim either under [SECTION] or under [SECTION] of the [ACT]. Therefore, such directions cannot be issued at the instance of the petitioner in respect of the aforementioned puramboke. What has been proposed in this case is a survey and demarcation of the property where the puramboke lies. A survey of the provisions under the [ACT] and the rules made thereunder namely 'the [ACT]' would undoubtedly reveal the existence of such a power. The petitioner has not brought to my notice any provision which prohibits such a survey and demarcation of boundaries. Above all, a perusal of Ext.P5 would reveal that the third ground taken by her thereunder (already extracted) is that a survey has to be conducted, by a higher authority. Going by paragraph 41 of [ENTITY]'s case (supra), State Government is free to pursue with other legal remedy to assert its right and therefore, it is needless to say that Government would be at liberty to take appropriate steps in accordance with law based on Exts.P3 and P4 if not already taken or to pursue with such actions if already taken. The petitioner will also be at liberty to take appropriate objection at the appropriate stage in appropriate proceedings subject to the outcome of such survey. In short, in view of the discussions above, the claim and contentions of the petitioner for a direction to refer the question under [SECTION] or [SECTION] of the [ACT] or to direct for an acquisition of the land in question have to fail. In the light of the position obtained from the above discussions, respondents cannot be compelled to make reference regarding those points referred above either under [SECTION] or under [SECTION] of the [ACT]. It is also to be noted in view of the clear provisions under [SECTION] and [SECTION] even on referrable issues, reference could be made only after an award of compensation under [SECTION] of the [ACT] and not earlier than that. In such circumstances, the petitioner is not entitled to any of the reliefs sought for in this writ petition.
Subject to the observations made as above, this writ petition is dismissed.
[ENTITY] (JUDGE) spc/ [CASE NUMBER] 33 [ENTITY] [ENTITY], J. JUDGMENT September,2010 [CASE NUMBER] 34