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.”
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
Dated;February 22,2016
Citation;(2016)4 SCC406
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
1
1955 SCR (1) 1311
2
1968 SCR (2) 892
3
(2004) 7 SCC 362
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
4
(2013) 3 SCC 571
Nusserwanji Rattanji Mistri (supra) has been adverted
to and distinguished, and adverted to
Delhi Administration v. Madan Lal Nangia5 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
5
(2003) 10 SCC 321
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, Sagar6, 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 :
6
AIR 1965 Mysore 222
7
“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
AIR 1968 SC 1045
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
Print Page
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.”
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
Dated;February 22,2016
Citation;(2016)4 SCC406
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
1
1955 SCR (1) 1311
2
1968 SCR (2) 892
3
(2004) 7 SCC 362
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
4
(2013) 3 SCC 571
Nusserwanji Rattanji Mistri (supra) has been adverted
to and distinguished, and adverted to
Delhi Administration v. Madan Lal Nangia5 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
5
(2003) 10 SCC 321
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, Sagar6, 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 :
6
AIR 1965 Mysore 222
7
“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
AIR 1968 SC 1045
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
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