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TaxTMI 
TaxTMI 
TaxTMI 
2009 (9) TMI 587
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....instituted by M/s. Godavari Packaging Systems, one of the creditors of M/s. DCL Maritech Ltd. The official liquidator attached to this court has been appointed as its liquidator. The company under liquidation acquired large extents of land of acres 409.42 situated at Krishnapatnam in Nellore District. Out of this extent, 242.72 acres of land has been acquired by the State Government for the establishment of a thermal power project through their orders passed in G. O. Ms. No. 226 (Revenue Land Acquisition) Department, dated May 2, 1995. In spite of the objections raised by the company that acquisition of such large extents of land belonging to it will virtually cripple the very objective for which the company was established mainly by developing fish ponds for carrying on business in pisci culture, the State Government has overruled the objections in view of the larger public interest demanding establishment of a thermal power station at Krishnapatnam. An amount of Rs. 3,46,16,639.27 was awarded as compensation for the land acquired by the State Government. This money has since been transferred to the credit of the company under liquidation. Subsequently, the Government of Andhra Pr....
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....yable at the rate of Rs. 2,50,000 per acre. Whereas, for the land belonging to the company under liquidation, which is forming part of the same compact block with the other land for which the compensation has been awarded on consent basis, amount of compensation payable has been determined fixing the market value of the land at the rate of Rs. 1,20,000 per acre. He has worked out the solatium payable in terms of section-23 of the Land Acquisition Act at the rate of Rs. 36,000 per acre and the additional market value in terms of section 23(1A) of the Land Acquisition Act at the rate of Rs. 13,216 per acre for 335 days calculated from May 11, 2006, the date on which publication of the draft notification has been made in the locality up to April 10, 2007, i.e., up to the date of the award. Thus, he has worked out the total compensation payable per acre at the rate of Rs. 1,69,216. In view of this gross disparity in fixing the amount of compensation, the official liquidator has filed the present application seeking directions to the respondent-Land Acquisition Officer to pay compensation at the rate of Rs. 2,50,000 per acre as was done in the case of the others whose land of acres 4.15....
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.... averred that the notices under sections 9(1) and 10 of the Land Acquisition Act seeking all the interested persons to attend the award enquiry and establish the nature of their interest and claim over the lands proposed for acquisition were issued. It was pointed out that the said notices were got published on the notice boards of the offices of the Mandal Revenue Officer, Mandal Development Officer and Sub-Registrar, Gram Panchayat and the nearest police station on November 20, 2006. It was further asserted that the individual notices under section 9(3) and section 10 of the Land Acquisition Act have been issued. But, it was candidly admitted at page 4 of the counter affidavit filed by the Revenue Divisional Officer, Nellore, as under : "... Notices could not be served on the land owners, i.e., M/s. DCL Maritech Ltd., the applicant herein, as their whereabouts were not known. Award enquiry was held on December 5, 2006, in the office of the Mandal Revenue Officer, Muthukur. But the applicant-company or authorised person on behalf of the applicant's-company did not attend the award enquiry with connected documentary evidence to claim the compensation. Later, the District Level Neg....
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....ernment Pleader for Revenue (Land Acquisition). 9. Learned counsel for the official liquidator has contended that as per Village Account No. 3 which is Adangal, the Land Acquisition Officer is aware that the company M/s. DCL Maritech Ltd., is the owner of the land in question. By virtue of an order made by this court on February 19, 2003, made in C. P. No. 21 of 2002, the above company was ordered to be wound up and the official liquidator attached to this court has been appointed as its liquidator. When once this court has passed an order ordering for the winding up of any company and the official liquidator has been appointed as its liquidator, in terms of section 446 of the Companies Act, 1956, no suit or other legal proceeding shall be commenced, or if pending at the time of its winding up, shall be proceeded with against the company, except by leave of the company court and hence the Land Acquisition Officer ought not to have initiated the legal proceedings in terms of sections 30 and 31 of the Land Acquisition Act by seeking to deposit the amount of compensation payable for the acquisition of the lands belonging to the company, without obtaining the leave of this court. Lear....
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....has not bothered to deliver any such notice in terms of sub-section (3) of section 9 of the Companies Act at the registered office of the company, which is at Hyderabad, it follows that without serving the mandatory notice, the Land Acquisition Officer illegally proceeded to pass his award and hence such an award shall be interdicted. 10. Per contra, the learned Government Pleader would stoutly resist the claim of the official liquidator by pointing out that that the Land Acquisition Officer does not adjudicate upon the rights of the parties when he makes an award determining the compensation payable for the compulsorily acquired land by the State for a public purpose and on the other hand his decision fixing the amount of compensation payable as per the prevailing market value of the land, is merely an offer made on behalf of the State through the award of the Land Acquisition Officer and any person who is aggrieved either about the quantum of compensation determined or with regard to the extent of land acquired, they are very much entitled to question the same by seeking a reference in terms of section 18 of the Land Acquisition Act and then all such questions would be determine....
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....assets of this company. The Land Acquisition Officer has verified the Village Account No. 3 (Adangal) and realised that the company is the owner of these lands. Section 9 of the Land Acquisition Act deals with the issuance of notice by the Collector to the persons interested in the land proposed for acquisition. Sub-section (1) of section 9 mandates that the Collector to cause public notice to be given at convenient places setting out the intention of the State to take possession of the land and that claims to compensation for all interests in such land may be made to him. Sub-section (2) thereof dealt with the contents of the above referred public notice. Whereas sub-section (3) of section 9 which will have a bearing on the controversy to be resolved in this case reads as under : "9. (3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein or to be entitled to act for persons so interested, as reside or have agents authorised to receive service on their behalf, within the revenue district in which the land is situate." 12. A close reading of sub-section (3) distinguishes ....
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....the company under liquidation was not at Nellore, but it is at Hyderabad. The Land Acquisition Officer has not made any such attempt to serve the company by registered post as is required under sub-section (4) of section 9 inviting-the, claims from it for compensation for the land proposed for acquisition. It is in fact candidly admitted in the counter affidavit filed by the Land Acquisition Officer at page 5 that notice under section 9(3) could not be served on the company. Without notice being addressed and sent through registered post to the registered office of the company, the notice under sub-section (3) of section 9 could not have ever been delivered. Subsection (3) read with sub-section (4) of section 9 mandated the Collector to serve the notice by post. A notice is said to have been served only when the act of delivery of such notice is accomplished. In this regard, it will be useful to have a look at section 27 of the General Clauses Act, 1897, which dealt with the meaning of service by post. It has been made clear in section 27 of the General Clauses Act that where any Central Act uses the expression "serve", the service shall be deemed to be effected by properly address....
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....rhaps it is liable to be accepted once and for all. That is the reason why sub-section (2) of section 11 empowers a consent award to be passed in the matter. It is certainly open for a party whose lands are sought to be acquired to give his consent for receiving a fair and reasonable quantum of compensation for the compulsory acquisition and be rid off of further hassles of time consuming litigation. The emphasis that is supplied by the statute that can be gathered from subsection (2) of section 11 is that, if a fair and reasonable quantum of compensation to the satisfaction of the claimant is worked out, a Consent award can be passed thereunder, thus bringing a complete end of all possible speculative elements. Such a provision has been made by Parliament to bring about a certainty in the affairs of the State. The State would be able to plan its financial outlay in terms of the consent award. The State does not require to make any further contingent allocation of funds on this count. Similarly, the claimants would be free from all hassles as the compensation-what was considered by them was most reasonable and appropriate-would get paid immediately and they don't need to indulge in....
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....he land, and if the Collector fails to make proper inquiries with regard to the existence of such a person, the court may come to the conclusion that the omission to serve notice was wilful. After all, as rights of subjects are affected, it is the duty of Government Officers to take proper care that inquiries are made to find out all the persons who are interested in the land which is sought to be acquired, and it may not lie in the mouth of the Collector to say in a proper case that the mere fact that the name of a person interested did not appear in the record of rights was sufficient to entitle him to make no other inquiry and to proceed with the acquisition without serving any notice under section 9(3)." 16. In Ganga Ram v. Secretary of State (30 Cal. 576), the Calcutta High Court held as under (page 335 of AIR 1950) : "Where it is known or believed that a person is interested and yet the Collector wilfully and perversely refuses to give him notice, then his proceedings cannot be considered bona fide and should be held to be colourable and therefore inoperative in vesting the land in the Government..." 17. Section 28A has been introduced to the Land Acquisition Act by the Am....
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....yable to another owner of the land at the same rate as was paid to yet another land owner whose land stood acquired by the same notification. 18. In the instant case, on the ground that two land owners have given their consent, a separate award bearing No. 7/07-08 was passed by the Land Acquisition Officer on the same day, viz., April 10, 2007, determining the total amount of compensation payable to them at the rate of Rs. 2,50,000 per acre. The extent of land involved in that award was only acres 4.15 cents. If only notice under section 9(3) has been served by the Land Acquisition Officer, the official liquidator also would have been granted the necessary permission by this court to give his consent for payment of compensation at the same rate of Rs. 2,50,000 per acre. In principle, I am not able to find any distinction between the consent executed by those individuals prior to April 10, 2007 and the consent now to be executed by the official liquidator in whose custody the assets of the company under liquidation are lying. 19. I, therefore, agree with the contention of learned counsel for the official liquidator that it is this court that has got the power to deal with all issu....