ORDER
Shivaraj Patil, J.
1. Heard the learned counsel for the parties. Petitioners in this writ petition have sought a writ of certiorearified mandamus to call for the records relating to the proceedings of the 2nd respondent in Na.Ka.A.No. 4/5832/91 dt. 10.7.91 and quash the same and consequently direct the third respondent to pass an award in respect of the petitioners' lands under the provisions of the Land Acquisition Act. Briefly stated the facts leading to the filing of this writ petition are the following:- The petitioners state that they are the owners of the various bits of land, particulars of which are given in para 2 of the writ petition. The said properties were purchased by the first petitioner under different sale deeds. Petitioner No. 2 is his wife and the petitioners 3 to 6 are his sons. There was a partition on 8.3.1989 and the properties were allotted to different petitioners in the said partition. Pursuant to the sale deeds. The petitioners were granted pattas by the Headquarters Additional Deputy Tahsildar, Vridhachalam on the basis of the said partition deed and the petitioners are in possession and enjoyment of the respective properties paying the kist. It is the further case of the petitioners that they have developed the land, by planting trees and raising crops; that there were five houses and three wells. They have planted teak-wood trees, eucalyptus, casuarina trees and bamboos. According to the petitioners, the value of the trees would be several lakhs and the value of the houses and wells would be about two lakhs.
2. It is further submitted that at the instance and for the purpose of Neyveli Lignite Corporation (NLC) the Government issued notification under Section 4(l) of the Land Acquisition Act, (for short the Act) which was published in Tamil Daily 'Dinakaran' on 17.1.1990 and in one another paper. Exercising the powers conferred under Section 17 of the Act, enquiry contemplated under Section 5-A of the Act was dispensed with. The draft declaration under Section 6 of the Act was approved by the Government vide G.0.652 Industries MIA (2) Department dated 25.6.90. Section 6 Declaration was published in the Tamil Daily 'Dinakaran' on 8.7.1990. The petitioners were waiting that they would hear something in regard to the land acquisition proceedings and were keeping quiet. During December, 1991, they came to know that certain orders had been passed with respect to their land. Petitioner came to know that the second respondent passed the impugned order dated 10.7.1991 for taking over the lands of the petitioners. The said lands were originally assigned to other persons subject to various conditions, one of the condition being that in case the lands were required by NLC, the assignees should surrender the lands without claiming any compensation. Invoking this condition, the second respondent has passed the impugned order cancelling the assignments made earlier. The impugned order states that notices were issued to persons in possession of the land. But the petitioners assert that they were not given any notice as alleged. They have further stated that no notice was served on the petitioners even by affixture. There was no occasion for them to refuse such notice as well. The first petitioner having purchased the lands undervarious registered sale deeds applied for mutation of the properties in his name. The mutation was accordingly effected. Even thereafter, he effected partition of the same lands between his wife and other petitioners - that is his sons. It is also stated that the first petitioner purchased the said land after a period of 10 years from the date of assignment and consequently there was no violation of condition No. 8 of the order of assignment. Clause 22 of the assignment deed states that whenever the land is required by NLC, it should be given to the Government without compensation. According to the petitioners, they cannot oppose the acquisition of these land for NLC but they would be entitled to compensation. Under these circumstances, the writ petition is filed for the relief as stated above.
3. The petitioners had not impleaded NLC in the first instance. However, NLC itself came on record by making an application for impleading. That is how NLC is figuring as 5th respondent in this petition. But it has not filed any counter-affidavit. The learned counsel for the 5th respondent Mr. N.A.K. Sharma states that the submission made in the affidavit filed in support of the impleading petition could be taken as the stand of the fifth respondent. The respondent No. 2 has filed a counter-affidavit. The respondents 1, 3 and 4 have adopted the said counter-affidavit. The second respondent in his counter-affidavit has stated that the lands in question were assigned to different persons as noted in the para 2 of the counter affidavit. The assignees have violated the special condition and sold the lands to the writ petitioner No. l. Based on the partition deed dated 8.3.89, the petitioners have applied to the Tahsildar, Vridhachalam for separate holdings. The Headquarters Deputy Tahsildar, Vridhachalam on the basis of the said partition deed, issued orders for separate holdings. It is further stated that the petitioner No. l has purchased the land in violation of the conditions of the assignment. Even in the assignment order, it is clearly stated that the assignees should not sell the lands to anybody and the lands may be resumed to Government when it is required by NLC for mining purposes and the lands would be taken back without payment of any compensation at any time. The petitioner No. l should have verified from the records before purchasing the said land. If they have made any development or improvement in the land, the Government cannot be blamed for it and the petitioners are not entitled to any compensation. It is not denied that a notification under Section 4(l) of the Act for acquiring these lands was issued on 17.1.1990. Even the urgency clause under Section 17(4) of the Act was invoked and dispensing with Section 5-A Enquiry and that a draft declaration under Section 6 of the Act was also approved. In the meanwhile, the Special Tahsildar No. l (Land Acquisition) Neyveli came to know that certain assessed waste dry lands which were assigned to landless poor in the year 1969 had been included in the schedule of land for acquisition as if they were patta lands. Immediately thereafter, the said Tahsildar addressed to the Tahsildar, Vridhachalam for the cancellation of the assignment of land and after giving notice, the impugned order was passed. It is the definite stand of the 2nd respondent that the petitioner No. l purchased the land in question violating the special condition attached to the assignment and further it was expressly stated that whenever the lands were required by NLC, they should surrender the lands to the Government without any compensation. Thus, according to the 2nd respondent, the petition is liable to be dismissed.
4. The respondents 1,3 and 4 as already stated have adopted the counter-affidavit of the second respondent thereby indicating their stand.
5. Sri K. Govindarajan, learned senior counsel for the petitioners contended that the impugned order is patently illegal and unsustainable for the reasons more than one. The impugned order was passed without giving notice to the petitioners, although they are in possession and enjoyment of the said lands, and even when their names find a place in the revenue records. Having regard to the fact that the Headquarteis Deputy Tahsildar himself had given patta for separate holdings on the basis of the partition deed, even assuming that the second respondent could cancel the order of assignment, who assigned the lands to various original assignees, for the violation of any one of the condition of assignment, it could be done only after issuing notice and that too, for violation of any one of the conditions mentioned in the assignment order or the conditions attached to the assignment. The impugned order was passed cancelling the assignment not for violation of any one of the conditions attached to the assignment but it was passed on the ground that the lands were required for NLC. Learned counsel further submitted that once the respondents 1 to 4 have taken steps to acquire the lands in question by resorting to the provisions under the Act, it was not open to them to deny compensation amount to the petitioners. It is not disputed mat notification under Section 4(l) of the Act was issued and the provisions of Section 17(4) of the Act were invoked: 5-A enquiry was dispensed with and even Section 6 declaration was also approved by the State Government. He added that even the compensation amount is determined. When the acquisition proceedings were at the advanced stage, in order to deny or deprive the petitioners from payment of compensation, the second respondent has initiated proceedings to cancel the assignment and ultimately passed the impugned order, which according to him, cannot be sustained.
6. Learned counsel in support of his submission placed reliance on the following decisions: 1. The Special Land Acquisition and Rehabilitation Officer, Sugar v. M.S. Seshagiri Rao and Anr., : [1968]2SCR892 and (2) Special Land Acquisition Officer v. K.S. Ramachandra Rao and Ors., : AIR1972SC2224 .
7. The learned Government Advocate for respondents 1 to 4 argued in support and justification of the impugned order. In his argument he reiterated the contentions raised in the counter-affidavit of the respondent No. 2. In short, he contended that the very purchase of the lands made by the first petitioner was against the special conditions attached to the assignment of the land to the original assignees. No doubt, the first petitioner purchased the lands after 10 years from the date of assignment. But the first petitioner admittedly does not belong to Schedule caste or schedule tribe. Hence, the purchase made was in violation of the condition No. 8; even as per one of the clauses specifically clause No. 22; when the lands were required for NLC, the assignees had to surrender those lands to the Government without claiming any compensation. When the original assignees were not entitled for compensation in respect of the said lands, the petitioners cannot claim anything more than that. As regards the allegation that the petitioners were not served with notice prior to the passing of the impugned order, he states that the said notice was served by affixtures, as stated in the counter affidavit of the second respondent. At that stage, the counsel for the petitioners placed before me the xerox copies of the impugned order and notice, both having been signed issued on the same date. In this context, the learned Government Advocate states that based on records, appropriate orders may be passed. Learned Government Advocate submitted that at the most, the petitioners are entitled for the value for the improvement or development made in the lands in question. In this regard, he wants to take support from the order dated 11.3.1994 passed by this Court in W.P. Nos. l3134 to 13137 of 1992 and 13449 to 13451 of 1992.
8. Mr. N.A.K. Sharma, learned counsel for the 5th respondent in his argument submitted that the assignees were not entitled to any compensation under the very same assignment deeds as can be seen from Clause 22. When the petitioners claim that they have purchased the land from the original assignees, they cannot be placed better and that they are not entitled to any compensation; he drew my attention to the special condition No. 22 of the assignment deed. He submitted that there was an embargo placed on the assignees from selling the said lands to any one else. He also submitted that the purchase made by the first petitioner of all these lands was clearly in violation of condition 8 as well. The respondents 1 to 4 have committed a mistake in proceeding to acquire the lands in question under the provisions of the Land Acquisition Act, although they could straight-away made or direct the original assignees or the petitioners as the case may be, to surrender the said lands without any payment of compensation. If they were required by NLC. The petitioners cannot take advantage of the mistake if any committed by the respondents 1 to 4 in proceeding to acquire the lands. Learned counsel made submission distinguishing the judgments of the Supreme Court aforementioned cited by the learned counsel for the petitioners in this regard.
9. I have considered the submissions made by the learned counsel for the parties. Two questions that arise for consideration are (1) whether the impugned order can be sustained and (2) whether the respondents 1 to 4 can deny payment of compensation having taken up proceedings under the provisions of the Land Acquisition Act for acquiring the lands in question.
10. There is no material before me to show that any notice was served on the petitioners before the impugned order was made, although there was some controversy between the parties that such notice was served by affixture. Having regard to the date of notice and the date of the impugned order, and the both having been signed on the same date, it is very difficult for this Court to accept that notices as required were served on the petitioners. At any rate, when a serious civil consequence has resulted by the passing of the impugned order, affecting the rights of the petitioners over the immovable properties, it was expected that the authorities ought to have in the first place attempted to serve notice on the petitioners personally. More so, when the records stand in the name of the petitioners and the Headquarters Deputy Tahsildar himself had allowed the applications made by the petitioners to permit them to have separate holdings on the basis of the partition deeds. A reading of the impugned order shows that the lands are said to be resumed not on the ground that any one of the conditions was violated but the said order was passed on the ground that the lands are required for NLC and as per Clause 22. If such lands were to taken over, whether the cancellation of assignment was required at all? Clause 22 authorises the State Government to resume the land if NLC requires them for their purposes. Cancellation of assignment possibly could arise only for violation of any one of the conditions attached to the grant. Since the petitioners are not given notice before passing the impugned order and that they were not provided with any opportunity to put forth their case, I have no hesitation to hold that the impugned order cannot be sustained.
11. The Supreme Court in the case of The Special Land Acquisition and Rehabilitation Officer, Sugar v. M.S. Seshagiri Rao and Anr., : [1968]2SCR892 was dealing with a case where the lands were granted by the Government on condition that the grantee will surrender the lands whenever required by the Government without claiming compensation. The Government in that case did not avail of the said condition, but proceeded to acquire the lands under the provisions of the Land Acquisition Act. In para 4 of the said judgment, it is stated thus;-
'The High Court also placed reliance upon the judgment of the Madras High Court in State of Madras v. A. Y.S. Parisutha Nadar, 1961 (II) MLJ 285. 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 Madias 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 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 proceedings 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 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.'
As could be seen from the said paragraph, it is stated in that case that the main question decided was whether it was open to the claimant to claim compensation for the land under acquisition to assert title to the land for compensation as against the State Government, when the land had become vested in the Government by operation of the other Act. It is specifically stated that the High Court rejected the contention observing that the Government availing itself of the machinery under the Land Acquisition and treating the subject-matter of acquisition as not belonging to itself but to others, is under an obligation to pay compensation as provided in the Act.
12. The Supreme Court yet in another decision in the case of Special Land Acquisition Officer v. K.S. Ramachandra Rao and Ors. : AIR1972SC2224 , referring to the decision of the Supreme Court aforementioned, held that despite a condition attached to the grant, that no compensation would be paid, if the land was required for public purpose, as notified in the provisions of the Land Acquisition Act, the parties were entitled to payment of compensation. Of course, in the said decision, it was also incidentally decided that it was not necessary for the Supreme Court to go into the question as to whether valuation made by the Land Acquisition Officer was correct or not. In this Judgment, reference was made to Seshagiri Rao's case, : [1968]2SCR892 aforementioned. Thus, on principle, both the decisions support the contention of the petitioners. I am not able to sec any distinction as to the question on the principle, namely, if once the Government notifies the land for acquisition under the provisions of the Land Acquisition Act, although it had the right to resume the land, it was not open to it to deny payment of compensation.
13. The order of this Court made on 11.3.1994 in W.P. Nos. 13134 to 13137 and connected cases, relied upon by the learned Government Advocate in support of his submission that at the most, the petitioners would be entitled to the extent of value of improvement and not for the market value of the land as compensation, in my view, does not advance the case of the respondents 1 to 4 any further on the points that arise for consideration in the case on hand. In those writ petitions, only writ of mandamus was sought directing the respondents not to interfere with the possession and enjoyment of the petitioners. As can be seen from the said order, one of the contentions raised was that they could not be denied compensation regarding value of improvements made. The contentions raised in these writ petitions and reliefs sought are different.
14. One more factor to be noticed is that the respondents 1 to 4, having proceeded to acquire the lands in question, noticing that Section 6 declaration was made at that stage, as stated in the impugned order itself, wanted to cancel the assignment with a view to deny or refuse the payment of compensation amount to the petitioners in respect of the said lands. There is some force in the submission of the Government Advocate as well as by the learned counsel for the fifth respondent, that the petitioner No. l had purchased the lands in violation of the condition of assignment. But the question before me is whether compensation can be denied having initiated the acquisition proceedings in respect of the very lands even assuming the petitioner No. l purchased the lands in violation of conditions of assignment. The answer is to be found in the Supreme Court judgments in this regard. If the first petitioner has purchased the lands in violation of the conditions of the grant, it was open to the authorities to issue necessary notices pointing out the violation of the particular condition and pass appropriate orders. That is not the position here. The impugned order says that the assignment was cancelled on the ground that the land was required for N.L.C. If the land was required for N.L.C, Clause 22 of the assignment order itself gave that power to the Government and as obligation was cast on the petitioners to surrender the lands. I do not understand as to why the authorities had to pass the impugned orders cancelling the assignments.
15. It is plain that the Government need not acquire its own lands, and the Government was not competent in the proceedings under the Land Acquisition Act to put forward its own title to the properties sought to be acquired, denying compensation to the persons entitled, having issued notifications specifying the lands and the names of owners/occupiers/persons interested. Thus under the circumstances, I have no hesitation to hold that whenever the Government waives to avail or invoke the condition of the grant or assignment, that a grantee or assignee will surrender lands whenever required by the Government without claiming compensation, and initiates proceedings for compulsory acquisition of such lands under the provisions of the Land Acquisition Act, treating such lands as not belonging to itself, but to others, is under an obligation to pay compensation as provided in the Act. Viewed in any way, the petitioners arc entitled to succeed.
16. In the result, the writ petition is allowed and the impugned order is quashed. The respondents 1 to 4 are directed to proceed farther with the acquisition of the lands in accordance with law.