COLLECTOR OF LAND ACQUISITION vs. M/S ANDAMAN TIMBER INDUSTRIES LTD. .

R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 1 Non-Reportable IN THE SUPREME COURT OF INDIA

COLLECTOR OF LAND ACQUISITION & ORS. …APPELLANTS Vs. M/S ANDAMAN TIMBER INDUSTRIES & ORS. ……RESPONDENTS WITH REVIEW PETITION (C) NO. 890 OF 2015 IN I.A. NO. 7 OF 2014 IN CIVIL APPEAL NO. 1810 OF 2009 JUDGMENT AND REVIEW PETITION (C)………… D. NO.1093 OF 2015 IN I.A. NO. 7 OF 2014 IN CIVIL APPEAL NO.1810 OF 2009 Page 1 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 2 J U D G M E N T V. GOPALA GOWDA, J. Review Petition (C) No. 888 of 2015: Delay condoned in filing the Review Petition. 2. This Review Petition is filed seeking review of the impugned judgment and order dated 28.11.2013 passed by this Court in Civil Appeal No. 1810 of 2009, whereby the said appeal was dismissed with a direction to the Review Petitioners- Appellants to make and publish an award in respect of the remaining JUDGMENT 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 Page 2 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 3 which no acquisition proceeding was considered necessary by the Andaman and Nicobar Administration. The I.A. was disposed of by this Court vide order

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 JUDGMENT 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 Page 3 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 4 reliance upon the lease deed dated 01.09.1960, executed in respect of the property covered in the acquisition notifications between Krishi Gopalan

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 JUDGMENT 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. Page 4 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 5 Further, the said license could be terminated at the will of the Review Petitioners- Appellants.

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. JUDGMENT 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 Page 5 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 6 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

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 JUDGMENT 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 Page 6 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 7 respect of the remaining land which was covered under the acquisition notifications referred to supra. The determination of market value of land which belongs

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 1 v. Nusserwanji Rattanji Mistri & Ors. , Special Land 2 Acquisition v. M.S. Seshagiri Rao & Anr. and Meher 3 Rusi Dalal v. Union of India & Ors. . 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 JUDGMENT 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 Page 7 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 8 can review its impugned judgment passed in the Civil Appeal. 7. On the other hand, Mr. C.A. Sundaram, learned

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 JUDGMENT 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. Page 8 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 9 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

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 JUDGMENT 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 Page 9 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 10 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.

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 JUDGMENT 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 Page 10 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 11 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

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 JUDGMENT 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 Page 11 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 12 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

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 JUDGMENT 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 Page 12 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 13 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

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 JUDGMENT 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 Page 13 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 14 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

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 JUDGMENT 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 Page 14 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 15 rightly contended by Mr. C.A. Sundaram, the learned senior counsel appearing on behalf of M/S Andaman Timber Industries Ltd.

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 JUDGMENT 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 4 Development Authority & Ors. wherein the four Judge Bench judgment of this Court in the case of 4 (2013) 3 SCC 571 Page 15 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 16 Nusserwanji Rattanji Mistri (supra) has been adverted to and distinguished, and adverted to 5 Delhi Administration v. Madan Lal Nangia wherein this

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. JUDGMENT 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 Page 16 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 17 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

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 JUDGMENT M.S. Seshagiri Rao & Anr v. Special Land Acquisition & 6 Rehabilitation Officer, Sagar , which judgment has been affirmed by this Court in the case of Special Land Acquisition & Rehabilitation Officer, Sagar v. M.S. 7 Seshagiri Rao & Anr. , wherein it was held as under : 6 AIR 1965 Mysore 222 7 Page 17 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 18

JUDGMENT 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 Page 18 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 19

JUDGMENT Page 19 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 20

JUDGMENT 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 Page 20 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 21

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 JUDGMENT 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. Page 21 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 22 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 JUDGMENT 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 Page 22 R.P. (C) NO.888 OF 2015 IN C.A. 1810 OF 2009 ETC . 23 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

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] JUDGMENT …………………………………………………J. [C. NAGAPPAN] New Delhi, February 22,2016 Page 23