Madras High Court
B.Venkatesalu vs The Secretary To Government Of Tamil ... on 18 January, 2016
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS CAV ON : 22/12/2014 DATED : 18/01/2016 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN W.P.No.7103 of 2014 and M.P.No.2 of 2014 1.B.Venkatesalu 2.B.Govindappa ... Petitioners vs. 1.The Secretary to Government of Tamil Nadu, Industries (MIG.2) Department, Secretariat, Chennai-600 009. 2.The Special Tahsildar (LA), SIPCOT Phase II, Hosur, Krishnagiri District. 3.The Managing Director, SIPCOT, 19A, Rukmani Lakshmipathi Road, Egmore, Chennai-600 008. 4.M/s.Ashok Leyland Pvt. Ltd., Rep. by its Manager, Legal & Insurance, No.1, Sardar Patel Road, Guindy, Chennai-600 032. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus to call for the records of the first respondent in G.O.Ms.No.1339, Industries, dated 20.09.1982 to quash the same, as the above Land Acquisition Proceedings being lapsed in view of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and consequently direct the respondents herein to hand over the possession of the petitioners land to an extent of 4.46 acres in S.No.583 in 105, Moranapalli Village in Hosur Taluk, Krishnagiri District. For Petitioners : Mr.S.Sathiaseelan For Respondents : Mr.P.H.Aravind Pandian Additional Advocate General Assisted by Mr.M.S.Ramesh, A.G.P. for R1 Mr.Ramesh Venkatachalapathy for R2 & R3 Mr.Jeyesh B.Dolia and Mr.V.Kalyana Raman For M/s.Aiyar and Dolia for R4 - - - O R D E R
The first petitioner has filed the affidavit on behalf of him and on behalf of his elder brother, who is the second petitioner herein. The first petitioner has submitted that the petitioners and their ancestors were doing cultivation in their agricultural properties situated in S.No.564/1, 574/2 to an extent of 2.17 acres lying on the western side of the Kelavarapalli Reservoir Project (KRP) Canal and in S.No.583, to an extent of 4.46 acres on the eastern side of KRP Canal, totally 6.63 acres, in Moranapalli Village, Hosur, Krishnagiri District from the year 1923 till 2012. The above agricultural ancestral properties in S.Nos.574/2 and 564/1 to an extent of 2.17 acres lying on the western side of the KRP Canal were acquired under G.O.Ms.No.570, Industries, dated 29.04.1982 invoking urgency provision of the 1894 Act when it was in the name of his late father, for the formation of Second Industrial Complex by the SIPCOT and another agricultural property in S.No.583 situate on the eastern side of the KRP Canal to an extent of 4.46 Acres was acquired under G.O.Ms.No.1339, Industries, dated 20.09.1982 for the above Industrial Project again under urgency provisions of the 1894 Act.
2. The first petitioner has further submitted that in respect of the lands acquired in S.Nos.574/2 and 564/1 to an extent of 2.17 acres under G.O.Ms.No.570, Industries, dated 29.04.1982, the petitioners' father received compensation from the Sub-Court, Krishnagiri under the Land Acquisition Act, 1894 Act. The agricultural land of petitioners in S.No.583 to an extent of 4.46 acres lying in the eastern side of the KRP canal was part and parcel of Kelavarapalli Reservoir Project Scheme Ayacut under the sluice 12L of right main canal of the project. The above G.O. specifically states that the land is acquired for the formation of Second Industrial Complex by the SIPCOT only. The above agricultural land in S.No.583 to an extent of 4.46 acres being separated from the rest of the acquired lands for second Industrial Complex for SIPCOT by the KRP Canal, was continuously cultivated without any kind of disturbance from anybody by the petitioners under the KRP Canal water project till 2012 and the respondents did not take care of the above petitioners' land due to Canal separation. The first petitioner has further submitted that though Section 17 of the Land Acquisition Act, 1894 does not contemplate industrial purpose to invoke urgency provisions for acquiring lands and that too without any real and genuine urgency for acquiring the petitioners' agricultural lands solely for the purpose of setting up of industrial complex by the third respondent SIPCOT in the garb of public purpose, the first respondent Government acquired the land as if there was an urgency under Section 17(1) and (4)of the Land Acquisition Act, 1894 in the year 1982. But, later on, without developing any Industrial Complex in the acquired land, those lands were transferred to the fourth respondent private company in the year 1992. The first petitioner has further submitted that though as per G.O.Ms.No.1702 (Industries) dated 16.12.1980 permission was obtained to acquire the land for the purpose of Second Industrial Complex at Mornapalli Village in the year 1980 itself, the Land Acquisition notification in G.O.Ms.No.1339 (Industries) dated 20.09.1982 was issued invoking urgency provisions of the Land Acquisition Act only on 06.10.1982. Therefore, the above acquisition suffers from two years pre-notification delay while invoking urgency provisions.
3. The first petitioner has further submitted that though the petitioners land was acquired in the year 1982 itself under urgency provisions of the 1894 Act it was still not utilized for more than about 30 years and only after 10 years since acquisition on 30.07.1992 lease deed was executed in favour of the fourth respondent by the second respondent, SIPCOT. The fourth respondent company till date have not utilized the acquired land because the petitioners' land is being separated by a Kelavarapalli Reservoir Project Canal from the rest of the land acquired and the petitioners were cultivating the land till 2012. As the petitioners' acquired land was fenced with barbed wires only on the two sides alone and the petitioners' approach side of the acquired land was not covered with barbed wire fencing, petitioners were able to do cultivation till 2012. Smelling the petitioners' earnest effort for re-conveyance of their acquired land, the fourth respondent company started preventing the petitioners from entering and cultivating the acquired land by fencing the approach side of the petitioners with mala fide intention to get over the legal proceedings if any initiated by the petitioners for re-conveyance in the year 2012. But till date, except by fencing the petitioners' acquired land, no development has taken place so far as the said land is lying beyond / across the KRP canal and hence, the petitioner's acquired land is being kept vacant as on date. As they did earlier, the fourth respondent may proceed to construct or build any superstructure over the petitioners' acquired land after filing this writ petition to project to the Court that the acquired land has been put to use already only with an intention to thwart the prayer made in this writ petition.
4. The first petitioner has further submitted that though the petitioners have taken efforts against the acquisition of the above land under urgency provisions of the 1894 Act by filing several writ petitions and representations for re-conveyance of their land in S.No.583 to an extent of 4.46 acres, they failed to obtain a suitable direction from this Court to the first respondent, but only in the year 2012 in W.P.No.10751 of 2012 they obtained an order dated 18.04.2012, directing the first respondent to consider the petitioners' representation for reconveyance and on 27.08.2012, the first respondent rejected the petitioners claim for re-conveyance. The first petitioner has further submitted that thereafter the petitioners have filed two other writ petitions in W.P.No.2518 of 2013, challenging the above first respondent's rejection of representation for re-conveyance and W.P.No.5263 of 2013 challenging the Land Acquisition Proceedings in G.O.Ms.No.1339 dated 20.09.1982 on the grounds of fraud on power, male fide and legal malice etc against the first to third respondents invoking Section 17 of the 1894 Act etc., and those writ petitions are the connected matter to this writ petition.
5. The first petitioner has further submitted that in the aforesaid circumstances, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 came into effect on 1st January 2014. Section 24 of the New Act is as follows:-
"24. Land Acquisition process under Act No.1 of 1894 shall be deemed to have lapsed in certain cases:-
(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894:
(a) Where no award under Section 11 of the said land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply: or
(b) Where an award under said Section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.
(2) Notwithstanding anything contained in Sub-Section (1), in case of Land Acquisition Proceedings initiated under the Land Acquisition Act, 1894, where an award under the said Section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid in the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provision of this Act.
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under Section 4 of the Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."
In view of the above provisions of the 2013 Act, purportedly where an Award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies is satisfied, viz., (i) physical possession of the land has not been taken or (ii) the compensation has not been paid, such acquisition proceedings shall be deemed to have lapsed. The first petitioner has further submitted that in the case on hand though the petitioners were called upon to participate in the award proceedings by the second respondent herein, the second respondent failed to communicate the award of compensation dated 26.09.1984 and interest on award dated 16.03.1985 to the petitioners in respect of their land in S.No.583. When the petitioners herein approached the first and second respondents for award of compensation at a later point of time, they had not properly informed to the petitioners about where the amount is being deposited, but only after the introduction of RTI Act, 2005 in 2006 in the year 2010 and 2011, the petitioners were informed by the second respondent on the petitioners' RTI applications that the Land Acquisition Award made in No.17/84, dated 29.09.1984 for a sum of Rs.13,883.60 has been deposited in the revenue account of Sub-Treasury, Hosur vide Challan No.459 on 13.12.1984. The above information was furnished to the petitioners by the second respondent vide letters dated 24.05.2010, 16.09.2010 and 16.03.2011. In the above circumstances, Section 31 of the 1894 Act sets out how the compensation has to be paid as below:-
"31. Payment of compensation or deposit of the same in Court:-
(1) On making an Award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested, entitled thereto, according to the Award and shall pay to them unless prevented by someone or more of the contingencies mentioned in the next sub section.
(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of compensation in the Court to which a reference under Section 18 would be submitted."
As the above provisions if due to any reason or contingencies contemplated in Section 31(2) of the 1894 Act, the Collector is prevented from making payment of compensation to the persons interested who are entitled to compensation, then the Collector is required to deposit the compensation in the Court to which reference under Section 18 may be made.
6. The first petitioner has further submitted that as per the second respondent's communications dated 24.05.2010, 16.09.2010 and 16.03.2011 it is very clear that the petitioners herein had not consented to receive the compensation therefore, in view of Section 31 of 1894 Act and hence the Collector ought to have deposited the compensation in the Court to which reference can be made under Section 18 of the Act, but in the instant case on hand compensation has been deposited only in Sub-Treasury, Hosur in a separate revenue account, which is in violation of Section 31 of the 1894 Act. The first petitioner has further submitted that in view of the Section 24(2) of 2013 Act, though the petitioners' land was acquired way back in 1982, cause of action arose for them only from the date of commencement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 i.e., since 1st January 2014. In the above circumstances, as per Section 24(2) of 2013 Act r/w Section 31 of the 1894 Act, the deposit of compensation amount in the Government Treasury is of no avail and cannot be held to be equivalent to compensation paid to the landowners / persons interested i.e, to the petitioners herein. Therefore, by creation legal fiction in Section 24(2) of the 2013 Act, the land acquired vide G.O.Ms.No.1339, Industries, dated 20.09.1982 is deemed to have lapsed and hence, liable to be quashed. The first petitioner has further submitted that as the first respondent Government's GO acquiring petitioners' land in G.O.Ms.No.1339, Industries, dated 20.09.1982 is being lapsed in view of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, legally now the acquisition is not in vogue as it had lapsed on 01.01.2014 itself. Hence, the petitioners have filed the above writ petition.
7. The second respondent has filed a counter affidavit and resisted the above writ petition. The second respondent has submitted that an extent of 4.46 acres of dry land in S.No.583 of Moranapalli Village was acquired by SIPCOT Phase-II Hosur for the expansion. Thiru.Bodiappa, the father of the petitioners was then alive. He moved this Court against acquisition and the writ petition was dismissed. He did not appear for award enquiry and did not make any claim for the compensation. He moved this Court for re-conveyance. Reconveyance can be prayed only under the presence already made at the Government or the requisitioning body that he has accepted that he is not in possession. The same was also disposed. He made several representations and in all cases, he was replied that the acquired land cannot be re-conveyed. After the demise of Bodiappa, his son B.Venkatesalu took up the same case after it was already decided. He too had replied that the land could not be re-conveyed. Now, he along with his brother B.Govindappa has filed the writ petition for the same intention that prevailed in their family since 1982. The second respondent has further submitted that the land in S.No.583 of Mornapalli Village was agricultural dry land and the ancestors of petitioners belong to agricultural family. The first petitioner B.Venkatesalu is a bank employee. The petitioners father was Bodiappa. Bodiappa lands in S.No.574/2 and 564/1 to an extent of 2.17 acres were acquired for SIPCOT Hosur under Land Acquisition Act 1 of 1894. The land in S.No.583 was also required for the expansion of SIPCOT, Hosur. Hence, it was acquired as per award No.17/84 dated 26.09.1984 by the Special Tahsildar (LA) SIPCOT under urgency provisions.
8. The second respondent has further submitted that there is no dispute under Land Acquisition Act in acquiring the lands in S.No.574/2 and 564/1 to an extent of 2.17 acres and 4.46 acres acquired in S.No.583 of Mornapalli Village. All the provisions of Land Acquisition Act was duly extended to get enhanced compensation as permitted in the Land Acquisition Act. Kelavarapalli Reservoir Project was executed only to establish the stabalising of wet lands in Hosur Taluk to an extent of 380 hectares. The land in S.No.583 was acquired in the year 1984 after publication of due notifications on 06.10.1982. The Kelarvapalli Dam was designed as early as 1970s. But the execution got delayed due to certain technical reasons and dispute raised by the Inamdar. So after acquiring the land for SIPCOT, the execution of KRP right main canal separating S.No.583 was not disputed by the SIPCOT, as it was required for public interest. As soon as the land in S.No.583 was acquired, the SIPCOT allotted it to M/s.Ashok Leyland, a MNC to set up a Truck Manufacturing Unit. It is functioning since 02.07.1992. Even assuming without admitting that the said land was cultivated by the petitioners after acquisition, it is unlawful activity and the petitioners cannot make any claim and hold the unlawful activity as a privilege for any claim. Language of Section 17 of the Land Acquisition Act reads as follows:-
"In case of urgency whenever the appropriate Government directs, the collector through no such award has been made may on the expiration of 15 days from the publication of the notice mentioned in Section 9 Sub Section (1) take possession of any land needed for public purpose. Such land shall there upon vest absolutely in the Government free from all encumbrances."
The second respondent has further submitted that as the Government felt that the land in S.No.583 and other land was required urgently to expand SIPCOT in Hosur Taluk, it was acquired under urgency provisions. The petitioners traced flimsy ground that the land in S.No.583 was not developed before allotment. The petitioners cannot find any fault in the process of acquisition after possession was handed over and the acquisition had been completed in all respects as per law. The second respondent has further submitted that the Land Acquisition Proceedings requires administrative sanction of the Government. It was issued in the year 1980 vide G.O.Ms.No.1702 (Industries) dated 16.12.1980. Notification under Section 4(1) and draft declaration under Section 6 and draft direction under Section 7 of the Land Acquisition Act were published on 06.10.1982 and after observing the formalities, the possession of the land covered under above notification were handed over to SIPCOT on 20.11.1982, in view of the urgency. The second respondent has further submitted that the petitioners' father Bodiappa filed writ petitions before this Court in W.P.Nos.12272 and 12273 of 1984 praying to re-convey. These writ petitions were dismissed on 07.06.1994 with a direction that "in case any such representation is made, their appropriate authority shall consider the same in accordance with law. The acquired land was handed over to SIPCOT on 20.11.1982 and the SIPCOT allotted the land to M/s.Ashok Leyland Ltd. The said Bodiappa was informed that the acquired land was allotted to M/s.Ashok Leyland Ltd and it cannot be re-conveyed. Earlier the petitioners father made several petitions repeating the same story. After his demise, the present petitioners are doing the same job.
9. The second respondent has further submitted that the acquired land was put into use by allotting it to M/s.Ashok Leyland Ltd for setting truck manufacturing unit. The Unit is running in 211 acres allotted by the SIPCOT and if an industry is running in 211 acres it has to observe many norms including Pollution Control Board Guidelines to spare some vacant area. Presently in the land in S.No.583, M/s.Ashok Leyland Ltd has erected the following in the land:-
(i) Hazardous waste storage shed
(ii) Sludge drying shed waste water treatment plant
(iii) Building
(iv) Dry solid waste packing in drums Therefore, the petitioners contention that the land remains unutilized is not correct. More, the word unutilized can connect only to the land owner and the applying body and that purpose was served. M/s.Ashok Leyland Ltd got allotment from SIIPCOT as per the available industrial guidelines. The petitioners cannot enter into the acquired land as all their interest were terminated. The lands were declared as free from encumbrances by the said award No.17/84, dated 26.09.1984. The second respondent has further submitted that the petitioners were misguided by the Real Estate Brokers to pour a number of petitions. After acquisition, the land was handed over to SIPCOT. SIPCOT in turn allotted the land to M/s.Ashok Leyland Ltd., The question of unused land does not arise. A portion kept vacant as per DTCP or PCB norms does not mean it was unutilized and it was properly replied to by the petitioners father as per the direction of this Court. All the efforts taken by the District Administration to explain to the petitioners that the acquired land was already put into use and the same cannot be recovered, is in vain.
10. The second respondent has further submitted that the petitioners have filed a writ petition in W.P.No.2518 of 2013, challenging the rejection of representation for re-conveyance, counter have been filed stating that the acquired land does not remain unutilized. The petitioners have also filed another writ petition in W.P.No.5263 of 2013, challenging the Land Acquisition Proceedings. In this case also, counter has been filed. After passing of award and after possession is handed over, the proceedings cannot be challenged. The second respondent has further submitted that the petitioners ancestral land was acquired in the year 1982 and in the year 2010 Tamil Nadu Industrial Land Acquisition Act 10/2000 came into force. The petitioners are irrelevantly connecting the concluded Land Acquisition Proceedings of 1982 under Land Acquisition Act 1/1984 to the present Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. In these circumstances, by innocence, the petitioners may also claim that the Land Acquisition Proceedings are liable to be quashed as the Act is repealed. The award No.17/84, dated 26.09.1984 in which the petitioners land was acquired do not fall in any of the categories. The New Act is not applicable to the facts of the case. The second respondent has further submitted that the Land Acquisition Proceeding is not pending. Hence, the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 is not a parameter to measure the concluded proceedings. The award was made in the year 1982. Almost 32 years are over.
11. The second respondent has further submitted that the award No.17/1984 dated 26.09.1984 was passed acquiring the petitioners land in S.No.583 of Mornapalli Village. At that time, Bodiappa, the father of the petitioners was alive. He was served with 12(2) notice by RPAD and the acknowledgment is filed. Hence, it is not true that the landowner was not communicated about the award. The second respondent has further submitted that in the writ petition filed by the petitioners, they have admitted the fact of passing award on 26.09.1984 and they cannot challenge at this juncture, the validity of award. The second respondent has further submitted that the land in S.No.583 of Mornapalli Village was acquired as a sum of Rs.13,883/- was decided as compensation and the same was intimated to Bodiappa by 12(2) notice. Hence, the question of Section 31 of the Land Acquisition Act does not come into picture. The landowner Bodiappa failed to attend the award enquiry to put his claim. Hence, he is not eligible for enhanced compensation. The second respondent has further submitted that the land in question was acquired as per award No.17/1984, dated 26.09.1984. Bodiappa was alive while the Land Acquisition Proceedings were on motion and refused to receive award enquiry notice under Section 9(1) and did not appear for enquiry. In such a situation, the landowner is not entitled for enhanced compensation under Section 18 of the Act. The second respondent has further submitted that the title was clear and it was only in Bodiappa's name and hence, the compensation was decided in his favour. Hence, Section 31 of the Land Acquisition did not take place. The second respondent has further submitted that after passing the award, the landowner Bodiappa was informed by 12(2) notice to take the award amount. He did not respond to the call. The amount decided under Section 11 was kept under revenue deposit. Hence, the second respondent has entreated the Court to dismiss the above writ petition.
12. The third respondent has filed a counter affidavit and resisted the above writ petition. The third respondent has submitted that the petitioners' lands were acquired in the year 1982 and an award was passed on 26.09.1984. The total extent of lands measuring 211 acres in S.No.583 were handed over to the fourth respondent for setting up an Automobile Industry and possession of the lands were transferred on 02.07.1992. The third respondent was surprised to note that the petitioners have come at a belated stage for reconveyance of the land because the entire extent of land has been put to use by the fourth respondent. The third respondent has executed a lease for 99 years with the fourth respondent for running and manufacturing of Medium Heavy Duty Vehicles like Commercial vehicles. The factory consists of about 4200 employees who handled the manufacturing of more than 50,000 vehicles. As per the Pollution Control norms, certain areas of lands have been earmarked to be kept vacant during manufacturing process and for parking, testing and runway for the vehicles. The fourth respondent has to maintain certain area as vacant space for the above purposes. These are all technical details of the fourth respondent and the petitioners cannot presume that the lands which is kept vacant has been unutilized.
13. The third respondent has further submitted that the Land Acquisition Proceeding was initiated in the year 1980 with the concurrence of the Government. The Land Acquisition Proceeding was completed on 26.09.1984. As the Land Acquisition Proceeding was initiated under urgency provisions, possession was handed over on 20.11.1982 after the publication of the draft declaration under Section 6 and draft declaration under Section 7 of the Land Acquisition Act. It cannot be recommended also at this stage after a lapse of 31 years, as it is not fair to discuss the requirements. The petitioners' father had not turned up for award enquiry to put-forth his claim. Hence, he lost his opportunity for claiming any alternation. According to the Land Acquisition Act, Section 48(B) was introduced to re-convey the land if it is not utilized for the purpose for which it was acquired. The land was fully utilized by the applying body. Hence, the land is under the full utility of the purpose for which it has been acquired and was allotted to the fourth respondent by the third respondent. The third respondent has further submitted that the father of the petitioners viz., Bodiappa earlier filed writ petitions in W.P.Nos.12272 and 12273 of 1984 seeking for a writ of mandamus forbearing the respondents from proceeding with the acquisition of land on the ground that the respondents have not put the land to the use for which they have acquired it as it is still lying vacant. This Court, in its order dated 27.06.1994 disposed the same with the observation that the exemption of acquired land shall be considered, if the land acquired is not utilized for the purpose for which it was acquired and the petitioner has to make a representation to the appropriate authority for this purpose. Accordingly, the said G.Bodiappa had made his representation to the Sub Collector, Hosur alleging that the authorities have not followed the rules and violated the provisions of the Land Acquisition Act and thus the entire proceedings had become invalid The Sub Collector has sent her report on the representation made by the petitioners to the District Revenue Officer, Dharmapuri vide letter dated 28.10.1997. Finally, the issue has been closed by the District Revenue Officer on 23.10.1998, taking into account that the lands in question have been utilized by the Company.
14. The third respondent has further submitted that the above said G.Bodiappa has again filed a writ petition in W.P.No.34702 of 2005 requesting to reconvey his land. This Court, in its order dated 28.10.2005 directed the respondents therein (Secretary to Government, Industries Department, SIPCOT, Special Tahsildar (LA), Hosur, the Management of Ashok Leyland Hosur) to consider the petitioner's request and pass orders on merits and in accordance with law. The Special Tahildar (LA), SIPCOT, Hosur in his proceedings dated 20.01.2006 stated that it is not possible to re-convey the land acquired from the petitioner according to law and after handing over the possession of the land to the applying body. The third respondent has further submitted that the petitioners herein being the legal-heirs of Bodiappa have filed another writ petition in W.P.No.10751 of 2012 before this Court alleging that their lands were not utilized and hence, they wanted reconveyance of their land under Section 48B. This Court, by its order dated 18.04.2012 was not inclined to go into the merits of the claim except to direct the Government to consider the claim of the petitioners in terms of the Act. The Government communicated vide letter No.8511/MIG 2/2012-2, dated 27.08.2012 to the petitioners herein that since the lands have been utilized for the purpose for which it was acquired, the request of the petitioners for reconveying the land cannot be complied with. The third respondent has further submitted that the decision of the Government has already been communicated to the petitioners and the acquiring / requisitioning body i.e., this respondent has utilized the lands acquired and allotted it to Industries.
15. The third respondent has further submitted that the writ petitioners have filed W.P.No.2518 of 2013 to quash the Government Letter No.8511/MIG 2/2012-2, dated 27.08.2012 rejecting the writ petitioners request for re-coneyance and has now filed the writ petition to quash the Government notification for acquisition on the ground of lapses by promulgation of the Fair Compensation and this writ petition is not maintainable in law or on facts. The third respondent has further submitted that the petitioner has sought for quashing of the Government Order dated 20.09.1982 on the premise that the acquisition proceeding has lapsed in terms of Section 24(2) of the Act 30 of 2013. The third respondent has further submitted that the writ petitioner had already filed W.P.No.5263 of 2013, challenging the Notification dated 20.09.1982 and to direct the respondents therein to hand over the possession of their land. In the said writ petition, a detailed counter affidavit has been filed by this respondent. The third respondent has craved leave of this Court to treat the counter affidavit filed in W.P.No.5263 of 2013 as part and parcel of this counter affidavit. The third respondent has further submitted that the writ petition in W.P.No.5263 of 2013 has been filed to quash the Government Order dated 20.09.1982 and to hand over the possession of their land. The present writ petition has been filed to quash the said Government Order dated 20.09.1982 as the Land Acquisition Proceedings being lapsed in view of Section 24(2) of Act 30 of 2013.
16. The third respondent has further submitted that counter filed by the third respondent will state that the award was passed on 26.09.1984 and the petitioners' father did not come for the enquiry and he had refused the notice issued for enquiry and has refused to collect the amount kept in revenue Department. The whole area of 211 acres of land has been assigned to the fourth respondent and it is not disputed by the petitioners that the fourth respondent is running an Automobile industry in the above land. The third respondent has further submitted that it is very difficult to bifurcate and reconvey an extent of 4.46 acres in S.No.583 which has been merged with the 211 acres of lands allotted to the fourth respondent. The third respondent has further submitted that the petitioners' father seems to have sent so many representations to all the authorities and in fact the District Revenue Officer, Dharmapuri had inspected the land and have sent a report to this respondent and the same was kept as agenda in Revenue Meeting and the petitioners were informed that the 211 acres of land had been handed over to the fourth respondent and it is difficult to de-merge 4.46 acres of land separately from the allotted 211 acres. Despite this, the petitioners had approached this Court on various occasions and the current writ petition is hit by res judicata. Since the respondents have transferred the possession as early as in the year 1992, complying with all the provisions of the Land Acquisition Act and this respondent having utilized the lands, it is difficult to bifurcate the said land only on the ground that the land has been unutilized. Hence, the third respondent has entreated the Court to dismiss the above writ petition.
17. The fourth respondent has filed a counter affidavit and resisted the above writ petition. The fourth respondent has submitted that the relief sought for in the writ petition is not maintainable in view of non applicability of Act 30 of 2013 to the facts of the present case on hand and the same is liable to be dismissed in limini. The petitioners have sought for quashing of the Government Order dated 20.09.1982 on the premise that the acquisition proceeding has lapsed in terms of Section 24(2) of Act 30 of 2013. The fourth respondent has further submitted that the petitioners had already filed W.P.No.5263 of 2013 challenging the Notification dated 20.09.1982 and to direct the respondents therein to handover the possession of their land. In the said writ petition, a detailed counter affidavit has been filed by this respondent. The fourth respondent has craved leave of this Court to treat the counter affidavit filed in W.P.No.5263 of 2013 as part and parcel of this counter affidavit. The fourth respondent has further submitted that W.P.No.5263 of 2013 has been filed to quash the Government Order dated 20.09.1982 and to hand over the possession of their land. The present writ petition has been filed to quash the said Government Order dated 20.09.1982 as the Land Acquisition Proceedings being lapsed in view of Section 24(2) of Act 30 of 2013. The fourth respondent has further submitted that W.P.No.5263 of 2013 was filed on the basis that urgency provision cannot be invoked for the purpose of acquiring land for industrial purpose. The fourth respondent has further submitted that filing the present writ petition amounts to giving up of the relief sought for in W.P.No.5263 of 2013. The fourth respondent has further submitted that relief sought for in the writ petition is hit by principles of res judicata and the petitioners cannot maintain two separate writ petitions for quashing the Government Order dated 20.09.1982. On these grounds alone, the writ petition is liable to be dismissed in limini.
18. The fourth respondent has further submitted that petitioners have alleged that the lands acquired in the year 1982 has not been utilized for more than 30 years, but this respondent has utilized the acquired land since their land is being separated by a Kelavarapalli Reservoir Project Canal from rest of the lands acquired and the petitioners were cultivating the land till 2012. In the affidavit filed in support of the writ petition in W.P.No.5263 of 2013, the petitioners have alleged that they have been cultivating the land till 2010, but on the contrary have now alleged that they have been cultivating the land till 2012. But, the fact remains that second and third respondents herein took possession of the land belonging to the petitioners as early as in the year 1982 and the allegation that the petitioners have been carrying on the agricultural activities in the land in question is wholly incorrect and misleading. The petitioners have not filed any documentary evidence to prove the same. The fourth respondent has further submitted that the contention of the petitioners that the land in question is kept vacant is wholly incorrect and the petitioners are put to strict proof of the same. In this regard, the fourth respondent has submitted that after completion of the construction, the Unit II has become operational during August 1994 and commenced its commercial production. The sewage treatment plant, effluent treatment and the finished vehicle parking are being put up near the natural canal. Further, this respondent had been in possession of the entire extent of land acquired by the first respondent and the same has been put to use. There are nearly 4500 employees working in the factory put up by this respondent in the acquired lands. All these factory buildings are put up after obtaining due approval from the planning authorities in the respective years and this respondent has made huge investments and availed huge loan from Banks and Financial Institutions for their business over the years and even now a huge loan is pending repayment. The fourth respondent has further submitted that the petitioners cannot place reliance in Act 30 of 2013 for the reason that the Award in respect of the land in question was passed under Section 11 of the Land Acquisition Act, 1894 as early as on 26.09.1984, Act 30 of 2013 cannot be pressed into operation by virtue of provisions of Section 24(1)(b) of the Act 30 of 2013. The fourth respondent has further submitted that since the provisions of Section 24(1) of Act 30 of 2013 itself is not applicable to the facts of the present case on hand, provisions of Section 24(2) of the Act cannot come to the aid of the petitioners. Thus, Act 30 of 2013 is not applicable to the facts of the case.
19. The fourth respondent has further submitted that the averment of the petitioners that the second respondent had failed to communicate the award of compensation to the petitioners is incorrect. In this issue, the fourth respondent has submitted that as early as on 26.09.1984, the Special Tahsildar (LA), SIPCOT Unit-I, Hosur passed an award under Section 11 of the Land Acquisition Act, 1894. As per the said award, the compensation was determined for the land belonging to the petitioners father for a sum of Rs.13,883.60. The Award has clearly stated that notices were promulgated / served in accordance with Section 9 of the Land Acquisition Act, 1894. In para 10 of the affidavit filed in support of the writ petition it has been averred that the petitioners were not communicated of the award. However, in the preceding line, it has been averred that on 26.09.1984 and 16.03.1985 award of compensation and interest on award respectively was awarded. The averments contained therein are vague and conflicting to each other. The fourth respondent has further submitted that even according to the petitioners, the compensation and interest were awarded. But, however, the petitioners father neither challenged the Land Acquisition Proceedings nor questioned the determination of compensation by the Land Acquisition Officer and allowed the proceedings to become final. Now, nearly after a period of 30 years, the petitioners have approached this Court questioning the Land Acquisition Proceedings. The fourth respondent has further submitted that the relief sought for by the petitioners are hopeless barred by delay and laches and the writ petition is liable to be dismissed in limini. The petitioners cannot be allowed to take advantage of the subsequent development of law after so many decades by sleeping over their rights. The fourth respondent has further submitted that the provisions of Section 24(2) of the Act 30 of 2013 would have become applicable if award has not been passed under Section 11 of the Land Acquisition Act in terms of Section 24(1)(a) of Act 30 of 2013. In the present case, admittedly award was passed on 26.09.1984 and by virtue of the same, Section 24(1)(b) of the Act comes to play as per which, where an award under Section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed. Therefore, the provisions of Section 24(2) of the Act 30 of 2013 is not applicable to the facts of the present case. The question of applicability of Section 31 of the Act would arise only if the case of the petitioners falls under Section 24(2) of the Act. In view of non-applicability of Section 24(2), the question of payment of compensation under Section 31 does not arise.
20. The fourth respondent has further submitted that non-obstente clause of Section 24(2) of the Act contemplates for either of two contingencies viz., where physical possession is not taken or where compensation is not paid. If either one of the above is satisfied, applicability is Section 24(2) of the Act is ousted. In the instant case, the physical possession of the land belonging to the petitioners were taken by SIPCOT as early as in the year 1982 and the land in question along with vast extent of lands were allotted to this respondent during 1992 and after completion of the construction activities, the Unit had become functional during August 1994. Further, this respondent had also put up additional construction in the said land. By virtue of the same, Section 24(2) of the Act does not have any application. On this ground also, the writ petition is liable to be dismissed. The fourth respondent has further submitted that the petitioners cannot place reliance on the judgment reported in 2014 (1) CTC Page 755 to contend the acquisition is bad since the compensation amount has not been deposited by the Land Acquisition Officer into the Court. The said case was dealt with only on the contention that the amount was not deposited under Section 18 of the Land Acquisition Act, 1894 before the Reference Court and there is no discussion regarding possession referred to in Section 24(2) of the Act 30 of 2013.
21. The fourth respondent has further submitted that the petitioners land forms part of the acquisition proceedings initiated by the first respondent and the possession of the land was handed over to the second respondent on 20.11.1982 as would be evident from the proceedings dated 16.03.2011 which is annexed to in the typed set of papers filed along with the writ petition. Further, on the basis of application submitted by the petitioners under the Right to Information Act, 2005, they were informed by the proceedings dated 16.09.2010 that the documents and revenue records standing in their name were transferred to the second respondent on 26.06.1985. When such is the position and in view of the fact the possession of the petitioners' land having been handed over to the second respondent as early as in the year 1982, it is not open for the petitioners to allege that they have been cultivating the land. The fourth respondent has further submitted that the petitioners' father did not challenge the acquisition proceedings initiated in the year 1982 and the same has become final. Award was also passed during the year 1984 determining the compensation payable to the petitioners' father in respect of the lands acquired. The record would reveal that despite service of notice under Section 9 of the Land Acquisition Act, 1894, the petitioners' father did not attend the award enquiry and the proceedings relating thereto has also become final.
22. The fourth respondent has further submitted that they had mortgaged the leasehold rights of the property situated at Plot No.77, admeasuring 197.15 acres with various financial institutions for the purpose of financial assistance loan and have obtained No Objection Certificate from the second respondent. On 17.01.2013, the second respondent issued No Objection for mortgaging the leasehold rights of Plot No.77 with an extent of 197.15 acres in Phase II at SIPCOT Industrial Complex, Hosur for the issue of Secured Redeemable Non-Convertible Debentures by SBICAP Trustee Company Ltd., to the value of Rs.300.00 Crores and in respect thereof, Memorandum relating to deposit of documents / deeds were executed on 11.12.2013 in favour of Standard Chartered Bank, who was acting as Agent & Custodian of SBICAP Trustee Company Limited and the documents relating to lands situated at Plot No.77 measuring an extent of 197.15 acres was also deposited with the said Bank and the same was registered as Document No.237 of 2013 in the Office of Sub-Registrar, Tiruvottiyur. The fourth respondent has further submitted that on 11.12.2013, the Sub-Registrar, Tiruvottiyur addressed a letter to the Sub-Registrar, Hosur seeking clarification as to whether the land in question is subject matter of interim stay granted by any Court of law, Government land, Wakf land, Temple land. On 16.12.2013, the Sub Registrar, Kelamangalam informed Sub-registrar, Tiruvottiyur that there is no entry in the lands in question relating to the clarification sent on 11.12.2013. The fourth respondent has further submitted that by letter dated 18.12.2013, the Sub-Registrar, Hosur informed Sub-Registrar, Tiruvottiyur that the lands situated at Mornapalli Village including the lands comprised in S.No.583 is with the possession of the second respondent. Therefore, the question of the petitioners carrying on cultivation in the land in question does not arise. Hence, the fourth respondent entreats the Court to dismiss the above writ petition.
23. The petitioners have filed a written submissions and submit that the above writ petition is being filed invoking Section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 on the grounds that,
(a) Award under Section 11 of the Land Acquisition Act, 1894 has been made five years or more prior to the commence of 2013 Act,
(b) But compensation has not been paid in the said proceedings and
(c) Possession of the land has not been taken in the manner known to law based on the interpretation given by the Hon'ble Supreme Court and this Court.
24. The petitioners have further submitted that if an award is passed under Section 11 of the Old Act, five years or more prior to the commencement of the 2013 Act and following anyone of the two conditions satisfied Land Acquisition Proceedings shall be deemed to have lapsed. In the case on hand, as award under Section 11 of the Old Act has been made on 26.09.1984 consequential either of two pre-conditions if satisfied subject matter of land acquisition can be held as lapsed. The petitioners have further submitted that the second respondent / Land Acquisition Special Tahsildar vide letters dated 24.05.2010, 16.09.2010 and 16.03.2011 have informed the petitioners that compensation amount has been deposited in revenue account at Sub-Treasury, Hosur on 13.12.1984. vide remittance challan No.459. The above said fact was also admitted in the Government's counter affidavit in paragarph 13 that award amount was kept under revenue deposit. Therefore, as held by the Hon'ble Supreme Court in (2014) 1 CTC 755 (SC) :: (2014) 3 SCC 184, (2014) 6 SCC 583 etc and latest one in Rajiv Chowdhrie HUF Vs. Union of India & Ors in I.A.No.4 of 2014 in Civil appeal No.8785 of 2013, the compensation deposited in Government Treasury cannot be held to be equivalent to compensation paid to the landowners or interested persons. Following the above Hon'ble Supreme Court judgment, this Court has granted several judgment in (2014) 4 MLJ 325 pr.20, (2014) 5 CTC 282 pr.12, 16 etc., Therefore, the subject matter of land acquisition proceedings deemed to have lapsed.
25. The petitioners have further submitted that in the case on hand after acquisition of 4.46 acres in S.No.583 in 1982, in the year 1986 UDR patta No.455 was issued in the name of the petitioners' Late father by the Special Tahsildar (Land Development), Hosur after inspecting the petitioners' above agricultural properties, therefore, it is very clear that without issuing any panchnama proceedings, the above agricultural lands were arbitrarily taken from the petitioners while crops were standing in the acquired lands. Therefore, as per the Hon'ble Supreme Court judgment reported in (2009) 8 SCC 399 pr.27, 42, physical possession of reacquired land without drafting panchnama in the presence of panchas (villages) would be tantamount to illegal or unlawful possession. The petitioners have further submitted that as per the law declared by the Hon'ble Division Bench of this Court in 1978 (91) LW 80 pr.27-30 and (2005) 3 LW 351 pr. 27, the instructions contained in Board Standing Order 90 were not issued under Section 55 of the Land Acquisition Act, 1894 the BSOs have no statutory force and held that such BSO cannot ignore the statutory requirement prescribed under Section 31(2) of the Land Acquisition Act, 1894.
26. The petitioners have further submitted that the fourth respondent Company in its counter affidavit had contended that the acquired lands including the petitioners' land had been mortgaged by obtaining NOC dated 17.01.2013 from the second respondent SIPCOT for the issue of Secured Redeemable Non-Convertible Debentures by SBICAP Trustee Company Ltd., for the value of Rs.300.00 Crores and in respect thereof Memorandum relating to deposit of documents / deeds were executed on 11.12.2013 in favour of the Standard Chartered Bank, who is acting as agent and custodian of SBICAP Trustee Company Ltd. and the same has been registered as document No.237 of 2013 in the Office of Sub-Registrar, Thiruvottiyur. Therefore, there is an embargo to grant relief under Section 24(2) of the 2013 Act which is not correct when the New Act does not append any proviso to that effect. Further, as per Section 44A of the 1894 Act which is being amended by the Government of Tamil Nadu vide the Land Acquisition (Tamil Nadu Amendment) Act, 1996 (Tamil Nadu Act 16 of 1997), whereby under sub-section (1) "No company for which any land is acquired under this part shall be entitled to transfer the said land or any part thereof by sale, mortgage, gift, lease or otherwise except with previous sanction of the appropriate Government".
As per sub-section (2) of Section 44-A if any company transferred in contravention of Sub-Section(1), the Government may, by order, declare the transfer to be null and void and, on such declaration, the land shall, as penalty, be forfeited to, and vest in, the Government in Revenue Department free from all encumbrances. The above legal position being affirmed by this Court in (2013) 5 CTC 706 and further held that any transfer made in violation of Section 44-A of 1894 Act is invalid. As per the counter affidavit filed by the fourth respondent Company there is previous sanction obtained from the appropriate Government, the respondent herein, and therefore, the mortgage of acquired land is illegal. Consequently, all the lands mortgaged are liable to be forfeited by the Government by declaring such mortgage as null and void as penalty. Therefore, that is not a ground to attack the writ petition seeking relief under Section 24(2) of 2013 Act.
27. The petitioners have further submitted that as alleged by the fourth respondent Company and SIPCOT none of the writ petitions are hit by the principle of res judicata because by the inception of 2013 Act the petitioners accrued fresh cause of action by way of change of law which cannot be attacked on the ground of principles of res judicata as held by the Hon'ble Supreme Court in several judgments viz., (1970) 1 SCC 613 pr.9, 10 and (1998) 2 SCC 642 pr. 8 and (1991) 1 SCC 494 pr.7. Further, the claim of the fourth respondent that the order of Special Tahsildar dated 20.01.2006 rejecting the petitioners' representation for reconveyance has become final cannot be said to be correct because there is no res judicata on the question of jurisdiction. Hereunder Section 48-B of 1894 Act only the Government has no power or jurisdiction to decide the issue of re-conveyance. The petitioners have further submitted that the submission of the first respondent Government was that the Tamil Nadu Legislature has passed a bill amending Section 24(2) of the 2013 Act and the same is sent for the consideration of the President of India for his assent. Therefore, the writ petitions filed seeking relief invoking Section 24(2) of the Act should be adjourned till then. It is most respectfully submitted that if a writ petition is filed based on the existing law or law in force the list has to be decided on the basis of law in operation, but not anticipating some change in law may come or may not come. The petitioners should not be made to wait for or asked to wait for the future law, which is quite contrary to the existing law i.e, benefit under Section 24(2) of the 2013 Act and to suffer the same which is in violation of Article 14 of the Constitution of India, hence, such a contention of the Government is liable to be rejected and the petitioners' case has to be decided based on the existing law or law in force. Hence, the petitioners entreat the Court to allow the above writ petition.
28. The learned counsel appearing for the petitioners has submitted that the petitioners are belonging to an agricultural family and they are doing cultivation in the subject matter of the lands. The respondents have invoked urgency provisions of the old Land Acquisition Act for the formation of second industrial complex for SIPCOT. The petitioners are doing cultivation continuously without any disturbance. The agriculture purpose is of paramount importance compared to the industrial purpose. The petitioners are still in physical possession and carrying out agricultural operation. Further, the petitioners have not received any compensation for the said lands. On an earlier occasion, the petitioners made a representation to the respondents to re-convey the subject lands as per the Act, since the same had not been utilized for the said purpose. Therefore, the petitioners are entitled to receive relief under the new Land Acquisition Act, 2013. They have not received any compensation and possession of the subject lands has also not been taken from them. Besides, the learned counsel has also filed a common written submissions and disclosed the factual current position and legal position of the case and cited judgments in support of his contentions.
29. The learned Additional Advocate General appearing for the first respondent has submitted that the respondents 2 and 3 required the subject lands and its adjacent lands for the expansion of SIPCOT, Hosur, and hence, the same had been acquired after invoking urgency provisions of the Land Acquisition Act. To that effect, a publication was issued during 1982. Subsequently, necessary formalities have been observed and award has been passed during 1984. The respondents 2 and 3, after acquisition, in turn allotted the subject lands to the fourth respondent herein and therefore the subject lands are under the care and maintenance of the fourth respondent. The learned Additional Advocate General has entreated the Court to dismiss the writ petition for the reasons that the subject lands had been acquired during 1984 and compensation has also been deposited. As such, the petitioners are not entitled to receive any remedy before this Court under the new Land Acquisition Act. The petitioners had also made a representation to the respondents to reconvey the subject lands and the same was also rejected on merits after due consideration.
30. The learned counsel appearing for the respondents 2 and 3 has submitted that the first respondent had issued G.O.Ms.No.1702 (Industries) dated 16.12.1980, for acquiring the subject lands and other adjacent lands. On the strength of the said Government Order, the subject lands had been acquired under the old Act after observing the necessary formalities. The acquired lands had been handed over to the third respondent on 20.11.1982. The Land Acquisition Officer, vide his proceedings, dated 26.09.1984, passed an Award for the said acquisition. Therefore, after acquiring the subject lands and utilizing the same, the petitioners have filed the writ petition after a lapse of around thirty years. As such, the writ petition filed by them can only be considered as an afterthought and as a misconceived one. Hence, the learned counsel has prayed for dismissal of the writ petition.
31. The learned counsel appearing for the fourth respondent has submitted that the subject lands and its adjacent lands were required for the formation of SIPCOT Phase-II, Hosur. Hence, the third respondent requested the first respondent for lands. Accordingly, the first respondent had issued a Government Order on 16.12.1980. Pursuant to the said Government Order, the second respondent had initiated acquisition proceedings after invoking emergency provisions of the old Land Acquisition Act. The acquisition proceedings had been completed during 1984, and Award had been passed and the same had also been communicated to the petitioners as per Section 12(2) of the Act by registered post with acknowledgment due. After acquisition, the second respondent had handed it over to the third respondent, who in turn allotted the subject lands to the fourth respondent herein, during 1992, for industrial purpose. As such, the physical possession is under the care and maintenance of the fourth respondent and he is utilizing the same for industrial purpose. Hence, for all these reasons, the learned counsel has prayed for dismissal of the writ petition.
32. On considering the facts and circumstances of the case, arguments advanced by the learned counsel on either side and on perusing the typed set of papers, this Court is of the view that the subject lands had been allotted to the fourth respondent on 02.07.1992. The fourth respondent had started his manufacturing unit and the same had been inspected by the Chief Inspector of Factories, who also sent a communication, dated 17.02.1995, to the fourth respondent stating that Plot No.77 is owned by the fourth respondent. Therefore, it clearly proves that the subject lands are under the occupation and enjoyment of the fourth respondent. Award has been passed on 26.09.1984. Hence, the petitioners are not entitled to receive remedy under the new Land Acquisition Act. Besides, the land acquisition proceedings had been completed during 1984. Therefore, after a lapse of around thirty years, the writ petition is not maintainable, since the original cause of action arose during 1980. In such circumstances, the writ petition does not generate sufficient force to allow it and hence it is liable to be dismissed.
33. In the result, the writ petition fails and it is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
18/01/2016 (1/3) Index : Yes/No. Internet : Yes/No. r n s / krk To: 1.The Secretary to Government of Tamil Nadu, Industries (MIG.2) Department, Secretariat, Chennai-600 009. 2.The Special Tahsildar (LA), SIPCOT Phase II, Hosur, Krishnagiri District. 3.The Managing Director, SIPCOT, 19A, Rukmani Lakshmipathi Road, Egmore, Chennai-600 008. C.S.KARNAN, J. r n s / krk W.P.No.7103 of 2014 and M.P.No.2 of 2014 18/01/2016 (1/3)