Madras High Court
E.Ramachandran vs The Secretary To Government on 6 November, 2014
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS CAV ON:05.11.2014 DATED: 06/11 /2014 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN W.P.No.27934 of 2014 1.E.Ramachandran 2.E.Selvaraj 3.E.Dhinakaran 4.E.Chinnaponnu 5.E.Anjali 6.E.Vairamani 7.G.Parvathi 8.N.Ramamurthy 9.A.Gowari 10.Master.A.Praveen (Minor) Rep. by his mother and natural guardian 11.M.Thilaga 12.M.Lokanathan 13.M.Dhina 14.M.Vinoth 15.N.Murali @ Raj 16.N.Malliga 17.N.Amaravathi 18.N.Mohana 19.N.Ramadevi 20.N.Mari 21.G.Govindammal 22.G.Sundararajan 23.G.Vasantha 24.G.Vijaya 25.G.Vani 26.C.Krishnan ... Petitioners Vs. 1.The Secretary to Government, Government of Tamil Nadu, Housing and Urban Development Department, Fort.Saint George, Chennai 9. 2.The Chairman and Managing Director, Tamil Nadu Housing Board, Nandanam, Anna Salai, Chennai 600 035. 3.The Executive Engineer and Administrative Officer, Tamil Nadu Housing Board Unit, Mogappair Division, Chennai 600 101. 4.The Special Deputy Collector (Land Acquisition), State Housing Board Schemes, Nandanam, Anna Salai, Chennai 600 035. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India to issue a writ of declaration or any other writ or order or direction in the nature of writ, declaring that the Land Acquisition Proceedings initiated under the Land Acquisition Act, 1894, with respect to the lands of an extent of 0.44 acres, comprised in S.No.604, situated at Mogappair Village, Saidapet Taluk, Tiruvallur District, belongs to the petitioners as lapsed in view of the Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30/2013). For Petitioner s : Mr.R.Vishnu for Mr.K.Ramu For Respondents : Mr.M.S.Ramesh Additional Govt. Pleader for R1 and R4 Mr.B.Vivekavanan for R2 and R3 - - - O R D E R
The short facts of the case are as follows:-
The Writ Petitioners submit that the 22nd petitioner is the son of Late C. Gopal. The 21st petitioner is mother of the 22nd petitioner. The petitioners 23 to 25 are the sisters of the 22nd petitioner. The 26th petitioner is the brother of Late C. Gopal. The petitioners 1 to 6 are the sons and daughters of Late C. Elumalai, who was the brother of Late C. Gopal. The 7th petitioner is the daughter of Late C. Govindaraj, who was the brother of Late C. Gopal. The petitioners 8, 15 to 20 are the sons and daughters of Late C. Natarajan, who was the brother of Late C. Gopal. The petitioners 9 and10 are the wife and son of Late N. Arumugam, who was one of the sons of the above said Late C. Natarajan. The petitioners 11 to 14 are the wife and sons of Late N. Munusamy, who was one of the sons of the above said Late C. Natarajan.
2. The writ petitioners submit that Late C. Gopal and his brothers namely (i) Late C. Elumalai, (ii) Late C. Natarajan (iii) Late C. Govindaraj and (iv) C. Krishnan, who is the 26st petitioner herein are the co-owners of the land of an extent of 0.44 acres comprised in S.No.604 situated at Mogappair Village, Saidapet Taluk, Thiruvallur District. All along they were in possession and enjoyment of the property till their lifetime along with the 26th petitioner. The said C. Gopal died intestate on 22.08.1977, leaving behind the 22nd petitioner, the 21st petitioner and the petitioners 23 to 25 as his only legal heirs to succeed his property. The above said Late C. Elumalai died intestate on 29.11.2005 leaving behind the petitioners 1 to 6 as his only legal heirs to succeed his property. Late C. Elumalais wife namely Mrs. Rukmani predeceased him on 15.10.1997. The above said Late C. Govindaraj died intestate on 06.09.2013 leaving behind the 7th petitioner herein along with his wife Mrs. Thulasi Ammal and his son Thiru. Dasatharan as his only legal heirs to succeed his property. The above said Late C. Natarajan died intestate on 26.03.1997 leaving behind his wife Late Sarasu, the 8th petitioner and the petitioners 15 to 20 along with his deceased sons, namely, Late Arumugam and Late Munusamy as his only legal heirs to succeed his property. The above said Sarasu died on 03.11.2013. The above said Arumugam died instate on 17.06.2008 leaving behind the petitioners 9 and 10 as his only legal heirs to succeed his property. The above said Munusamy died intestate on 27.08.1999 leaving behind the petitioners 11 to 14 as his only legal heirs to succeed his property. Thus the writ petitioners become the absolute owners of the property as co-owners and they are in possession and enjoyment of the property.
3. The writ petitioners further submit that in the year 1975, large extent of the lands situated at Mogappair Village including the subject land were sought to be acquired by the first respondent under the Land Acquisition Act 1894 for the purpose of Housing Schemes at the request of the 2nd Respondent. The notification under Section 4(1) of the Land Acquisition Act, 1894 hereinafter called the Old Act came to be issued on 23.10.1975 in G.O. Ms. No.261. In the said notifications, the name of the 26th petitioner was wrongly mentioned as Kistappa mudali. Though the 26th petitioner along with his brothers mentioned above objected to the said acquisition proceedings, the first respondent had overruled all the objections and issued a declaration under Section 6 of the Old Act dated 09.11.1978 in G.O. Ms. No.1515. Thereafter, the said acquisition proceedings culminated in passing of an award in Award No. 3/83, dated 31.03.1983. Even though the award was made as early as in the year 1983, the fourth respondent did not take any steps to take the possession of the subject land either from the petitioners or from their ancestors. Further, neither the petitioners ancestors nor the petitioners were paid the compensation by the fourth respondent in respect of the subject land till today.
4. The writ petitioners submit that inspite the acquisition proceedings came to be completed in the year 1983 the respondents did not take any steps to take the physical possession of the subject land and utilise the land for any schemes for the reasons best known to the responents. Hence, Late C. Elumalai, Late C. Govindaraj, the wife of Late C. Natarajan namely Late Sarasu along with the petitioners 21 and 26 herein had filed a writ petition before this Honble Court in WP No. 2682 of 2004 for a direction to reconvey the subject land to them based on a representation given to the 1st respondent. The said writ petition came to be dismissed on 12.02.2004. Aggrieved by that order, an appeal was filed in W.A. No. 3342 of 2004 and the same was dismissed on 03.11.2008 on the ground that the request of the petitioners ancestors was rejected by the Government on 14.10.2004. In the meanwhile, the request for reconveyance sought for by their ancestors was rejected on 14.10.2004 by the first respondent. Aggrieved by that order dated 14.10.2004, their ancestors had filed a writ petition in WP. No. 25117 of 2005 before this Court and the same came to be dismissed on 23.12.2005. Aggrieved by the order dated 23.12.2005, their ancestors had filed an appeal in WA. No. 1012 of 2006 before this Court. The Division Bench of this Court in its order dated 07.08.2006 was pleased to set aside the order passed by the first respondent dated 14.10.2004 and remitted the matter to the first respondent for consideration of the application made by their ancestors for reconveyance of the subject land. However, the first respondent herein did not consider the request of their ancestors for reconveyance of the subject land as per the direction.
5. The writ petitioners submit that till date the Respondents did not implement any schemes in respect of the subject land. The land is in possession and enjoyment of the petitioners. Though Award No.3/83 came to be passed on 31.03.1983, till date the fourth Respondent did not take physical possession of the subject land either from the petitioners or from their ancestors. Further, in fact, no notice was issued under Section 12(2) of the Old Act informing the land owners regarding the passing of the award and the compensation. Neither the petitioners nor their ancestors were offered or paid the compensation amount as per the award by the fourth respondent. On enquiry the petitioners came to know, till date the compensation offered in the Award No.3/1983, dated 31.03.1983 has not been deposited before the competent Civil Court by the fourth respondent. Thus the compensation amount is neither paid nor made available for the land owners to receive the compensation by depositing the same before the Competent Civil Court as required under the Old Act.
6. The writ petitioners submit that in such circumstances, now, the Government of India brought in new Land Acquisition Act repealing the Old Act, namely The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and the Settlement Act 2013 (Act 30/2013), hereinafter called the New Act and the same came into effect from 01.01.2014.
7. The writ petitioners submit that if the physical possession of the lands are not taken or the compensation is not paid in respect of the proceedings initiated under the old Act, as per Sec 24(2) of the New Act, the entire acquisition proceedings initiated under the old Act shall be deemed to have been lapsed. Since, in the present case, the physical possession of the land is not taken either from the petitioners or from their ancestors by the 4th respondent after the passing of the award on 31.03.1983 and the compensation is neither paid nor deposited in the competent civil court as required under the Old Act, the respondents do not have any right to proceed further under the old Act.
Section 24 of the New Act reads 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 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 provisions 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 said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.
8. Hence, the petitioners contended that the land owners are getting new and absolute right over the property in view of the New Act.
9. The writ petitioners submit that the issue involved in the Writ Appeals as stated above is not with regard to the rights and benefits accrued under the New Act. In view of Section 24(2) of the New Act, the petitioners are entitled to maintain the present Writ Petition as the new Act creates new rights in favour of the land owners so as to enable them to retain the land without any interference by the respondents, since the compensation awarded is not paid or deposited before the competent civil court and the physical possession of the land is not taken from the land owners by the fourth respondent.
10. The Learned Counsel Mr. R. Vishnu, appearing for the petitioners would contend that till now the physical possession of the subject land was not taken by the Land Acquisition officer, ie., the fourth respondent herein either from the petitioners or their ancestors under section 16 of the Old Act. Further, he contended that though the award was passed as early as in the year 1983 till today neither the petitioners nor their ancestors were offered and paid the compensation amount as per award in respect of the subject land and in fact the compensation amount was also not deposited before the competent civil court as envisaged under section 31 of the Old Act.
11. The Learned counsel for the petitioners further contend that since the compensation was neither offered nor paid to the petitioners or their ancestors or deposited in the competent civil court and further the physical possession was not taken by the respondents from the landowners, Section 24(2) of the New Act is squarely applicable to the instant case for getting remedy. Hence, the entire acquisition proceedings initiated under the Old Act in respect of the subject land become lapsed. The learned counsel to sustain his submissions has cited the following judgments:-
(i) PUNE MUNICIPAL CORPN. vs. HARAKCHAND MISIRIMAL SOLANKI reported in (2014) 3 Supreme Court Cases 183
12. To find out the meaning of the expression, compensation has not been paid, it is necessary to have a look at Section 31 of the 1894 Act. The said Section, to the extent it is relevant, reads as follows:
31. Payment of compensation or deposit of 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 it to them unless prevented by some one 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 the compensation in the Court to which a reference under section 18 would be submitted:
13. There is amendment in Maharashtra - Nagpur (City) in Section 31 whereby in sub-section (1), after the words compensation and in sub-section (2), after the words, the amount of compensation, the words and costs if any have been inserted.
14. Section 31(1) of the 1894 Act enjoins upon the Collector, on making an award under Section 11, to tender payment of compensation to persons interested entitled thereto according to award. It further mandates the Collector to make payment of compensation to them unless prevented by one of the contingencies contemplated in sub-section (2). The contingencies contemplated in Section 31(2) are: (i) the persons interested entitled to compensation do not consent to receive it (ii) there is no person competent to alienate the land and (iii) there is dispute as to the title to receive compensation or as to the apportionment of it. If due to any of the contingencies contemplated in Section 31(2), 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.
15. Simply put, Section 31 of the 1894 Act makes provision for payment of compensation or deposit of the same in the court. This provision requires that the Collector should tender payment of compensation as awarded by him to the persons interested who are entitled to compensation. If due to happening of any contingency as contemplated in Section 31(2), the compensation has not been paid, the Collector should deposit the amount of compensation in the court to which reference can be made under Section 18.
16. The mandatory nature of the provision in Section 31(2) with regard to deposit of the compensation in the court is further fortified by the provisions contained in Sections 32, 33 and 34. As a matter of fact, Section 33 gives power to the court, on an application by a person interested or claiming an interest in such money, to pass an order to invest the amount so deposited in such government or other approved securities and may direct the interest or other proceeds of any such investment to be accumulated and paid in such manner as it may consider proper so that the parties interested therein may have the benefit therefrom as they might have had from the land in respect whereof such money shall have been deposited or as near thereto as may be.
17. While enacting Section 24(2), Parliament definitely had in its view Section 31 of the 1894 Act. From that one thing is clear that it did not intend to equate the word paid to offered or tendered. But at the same time, we do not think that by use of the word paid, Parliament intended receipt of compensation by the landowners/persons interested. In our view, it is not appropriate to give a literal construction to the expression paid used in this sub-section (sub-section (2) of Section 24). If a literal construction were to be given, then it would amount to ignoring procedure, mode and manner of deposit provided in Section 31(2) of the 1894 Act in the event of happening of any of the contingencies contemplated therein which may prevent the Collector from making actual payment of compensation. We are of the view, therefore, that for the purposes of Section 24(2), the compensation shall be regarded as paid if the compensation has been offered to the person interested and such compensation has been deposited in the court where reference under Section 18 can be made on happening of any of the contingencies contemplated under Section 31(2) of the 1894 Act. In other words, the compensation may be said to have been paid within the meaning of Section 24(2) when the Collector (or for that matter Land Acquisition Officer) has discharged his obligation and deposited the amount of compensation in court and made that amount available to the interested person to be dealt with as provided in Sections 32 and 33.
18. 1894 Act being an expropriatory legislation has to be strictly followed. The procedure, mode and manner for payment of compensation are prescribed in Part V (Sections 31-34) of the 1894 Act. The Collector, with regard to the payment of compensation, can only act in the manner so provided. It is settled proposition of law (classic statement of Lord Roche in Nazir Ahmad) that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.
19. Now, this is admitted position that award was made on 31.01.2008. Notices were issued to the landowners to receive the compensation and since they did not receive the compensation, the amount (Rs.27 crores) was deposited in the government treasury. Can it be said that deposit of the amount of compensation in the government treasury is equivalent to the amount of compensation paid to the landowners/persons interested? We do not think so. In a comparatively recent decision, this Court in Agnelo Santimano Fernandes, relying upon the earlier decision in Prem Nath Kapur, has held that the deposit of the amount of the compensation in the State's revenue account is of no avail and the liability of the state to pay interest subsists till the amount has not been deposited in court.
20. From the above, it is clear that the award pertaining to the subject land has been made by the Special Land Acquisition Officer more than five years prior to the commencement of the 2013 Act. It is also admitted position that compensation so awarded has neither been paid to the landowners/persons interested nor deposited in the court. 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. We have, therefore, no hesitation in holding that the subject land acquisition proceedings shall be deemed to have lapsed under Section 24(2) of the 2013 Act.
21. The argument on behalf of the Corporation that the subject land acquisition proceedings have been concluded in all respects under the 1894 Act and that they are not affected at all in view of Section 114(2) of the 2013 Act, has no merit at all, and is noted to be rejected. Section 114(1) of the 2013 Act repeals 1894 Act. Sub-section (2) of Section 114, however, makes Section 6 of the General Clauses Act, 1897 applicable with regard to the effect of repeal but this is subject to the provisions in the 2013 Act. Under Section 24(2) land acquisition proceedings initiated under the 1894 Act, by legal fiction, are deemed to have lapsed where award has been made five years or more prior to the commencement of 2013 Act and possession of the land is not taken or compensation has not been paid. The legal fiction under Section 24(2) comes into operation as soon as conditions stated therein are satisfied. The applicability of Section 6 of the General Clauses Act being subject to Section 24(2), there is no merit in the contention of the Corporation.
(ii) Raghbir Singh Sherawat vs. State of Haryana reported in (2012) 1 Supreme Court Cases 792
25. The legality of the mode and manner of taking possession of the acquired land has been considered in a number of cases. In Balwant Narayan Bhagde V M.D.Bhagwat Untwalia, J. referred to the provisions of Order 21 Rules 35, 36, 95 and 96 of the Code of Civil Procedure and opined that the delivery of symbolic possession should be construed as delivery of actual possession of the right, title and interest of the judgment debtor. His Lordship further observed that if the property is the land over which there is no building or structure, the delivery of possession over the judgment-debtor's property becomes complete and effective against him the moment the delivery is effected by going upon the land. The learned Judge went on to say (SCC pp. 710-11, para 25) 25.When a public notice is published at a convenient place or near the land to be taken stating that the Government intends to take possession of the land, then ordinarily and generally there should be no question of resisting or impeding the taking of possession. Delivery or giving of possession by the owner or the occupant of the land is not required. The Collector can enforce the surrender of the land to himself under section 47 of the Act if impeded in taking possession. On publication of the notice under Section 9(1) claims to compensation for all interest in the land have to be made; be it the interest of the owner or of a person entitled to the occupation of the land. On the taking of possession of the land under Section 16 or 17 (1) it vests absolutely in the Government free from all encumbrances. It is, therefore, clear that taking of possession within the meaning of Section 16 or 17 (1) means taking of possession on the spot. It is neither a possession on paper nor a 'symbolical' possession as generally understood in civil law. But the question is what is the mode of taking possession? The Act is silent on the point. Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking of possession is not necessary. No further notice beyond that under Section 9(1) of the Act is required. When possession has been taken, the owner or the occupant of the land is dispossessed. Once possession has been taken the land vests in the Government.
26.Bhagwati, J. (as he then was) and Gupta, J., who constituted the majority did not agree with Untwalia, J. and observed as under: (Balwant Narayan Bhagde case, SCC pp. 711-12, para 28) 28. ... We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking 'symbolical' possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard-and-fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and invoidable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tahsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tahsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it.
27. In Banda Development Authority v. Moti Lal Agarwal, the Court referred to the judgments in Balwant Narayan Bhagde v. M.D.Bhagwat, Balmokand Khatri Educational and Industrial Trust V State of Punjab, P.K.Kalburqui v. State of Karnataka, NTPC Ltd V Mahesh Dutta, Sita Ram Bhandar Society V Govt. (NCT of Delhi) and culled out the following propositions: (Banda Development Authority case, SCC p. 411 para 37)
i)No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
ii)If the acquired land is vacant the act of the State authority concerned to go to the spot and prepare a panchanama will ordinarily be treated as sufficient to constitute taking of possession.
iii)If crop is standing on the acquired land or building / structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building / structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchanama. Of course, refusal of the owner of the land or building / structure may not lead to an inference that the possession of the acquired land had not been taken.
iv)If the acquisition is of a large tract of land, it may not be possible for the acquiring / designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
v)If beneficiary of the acquisition is an agency / instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17 (3-A) and substantial portion of the acquired land has been utilized in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken.
28.If the appellant's case is examined in the light of the propositions culled out in Banda Development Authority V. Moti Lal Agarwal we have no hesitation to hold that possession of the acquired land had not been taken from the appellant on 28.11.2008 i.e., the day on which the award was declared by the Land Acquisition Collector because crops were standing on several parcels of land including the appellant's land and possession thereof could not have been taken without giving notice to the landowners. That apart, it was humanly impossible to give notice to a large number of persons on the same day and take actual possession of the land comprised in various survey numbers (total measuring 214 acres 5 kanals and 2 marlas).
29.In view of the above discussion, we hold that the record prepared by the Revenue Authorities showing delivery of possession of the acquired land to HSIIDC has no legal sanctity and the High Court committed serious error by dismissing the writ petition on the specious ground that possession of the acquired land had been taken and the same vested in the State Government in terms of Section 16.
(iii)PATASI DEVI v. STATE OF HARYANA reported in (2012) 9 Supreme Court Cases 503.
A. Land Acquisition Act, 1894 Se.6 and 16 Possession of acquired land Burden of proof Absence of any evidence to show that actual or even symbolic possession of appellant's land and house constructed over it was taken by competent authority between 09.12.2009 ie., date of which award was passed and 20.01.2010 ie., date on which writ petition was filed, and the same was handed over to HUDA Hence, impugned judgment dismissing appellant's petition solely on ground that it was filed after passing of award, unsustainable Constitution of India Art. 226 Maintainability of final orders.
B. Land Acquisition Act, 1894 Se. 4 and 6 Challenge to Acquisition on ground of colourable exercise of power Evidence showing that though notifications issued under Se. 4 and 6 recited that land was acquired for public purpose, but real object of acquisition was to benefit coloniser R-6 who wanted to develop the area into residential colony Moreover, appellant's land was surrounded by land R-6 and earlier also land acquired for same public purpose was transferred to R.6 Hence, acquisition of appellant's land was vitiated due to colourable exercise of power Acquisition quashed.
(iv) Karuppathal Vs- State of Tamilnadu reported in (2014) 5 CTC 282
(v) Union of India and others Vs- Shiv Raj and others reported in (2014) 6 SCC 564
(vi) Bimla Devi and others Vs- State of Haryana and others reported in (2014) 6 SCC 583
(vii) Bharat Kumar -Vs- State of Haryana and another reported in (2014) 6 SCC 586
(viii) P. Jeyadevan Vs- State of Tamilnadu reported in (2014) 4 MLJ page 325
(ix) A.Nagarajan and others -Vs- Secretary to Government and others reported in (2014) 6 MLJ 29
(x) and a very recent judgement of the Apex Court in Sree Balaji Nagar Residential Association vs- State of Tamilnadu reported in (2014)5 CTC page 857
12. Relying on the above decisions, the learned counsel for the petitioners contended that since the fourth respondent herein, who is the Land Acquisition Officer under the Old Act did not take the physical possession of the land either from the petitioners or from their ancestors and that the petitioners were neither offered nor paid the compensation amount or deposited before the civil court after following the mandatory requirements and procedures before making the deposit in the civil court, the entire proceedings under the Old Act become lapsed in view of the Section 24(2) of the New Act.
13. The learned counsel for the petitioners further contended that though the second respondent in its counter affidavit had stated that the possession of the subject land was taken by the Tamilnadu Housing Board from the land acquisition officer on 22.06.1983, no records were produced by the respondents for taking possession of the subject land by the Land Acquisition Officer ie., the 4th respondent from the landowners under section 16 of the Old Act. Moreover, Section 24(2) of the New Act contemplates taking of physical possession by the Land Acquisition Officer from the land owners. So, in the absence of any material to show that the physical possession of the land was taken from the land owners, the entire proceedings under the Old Act must be deemed to have lapsed. Though, the second respondent in the typed set of papers had filed a transfer of charge certificate dated 22.06.1983 under which the Head Surveyor, TNHB said to have taken possession from the Special Revenue Inspector of the Revenue Department, the same do not have any legal significance for the reason that the respondents did not produce any document for taking possession of the land by Land Acquisition Officer from the landowners. For that, the Learned Counsel has relied on the judgement by the Honble Apex Court reported in (2012)1 SCC 792 with regard to taking of possession. He further contended that with regard to the payment of compensation, the respondents 2 and 3 have not given the proper and specific reply. At one place in the counter, it is stated that the award amount was kept under work deposit on 31.03.1983 in the name of the original owners. However, contrary to that in the very same counter it is stated that the award amount was accepted by the petitioners father on 16.08.1983, but no proof was produced to substantiate the said statement. Even in the counter affidavit it is not clearly stated by the respondents 2 and 3 as to what was the award amount awarded to the subject land. The document, at pages 29 and 30 of the typed set of papers cannot be acceptable as the same did not provide any proof for the receipt of the award amount and once again the learned counsel reiterating that no compensation was paid to the petitioners or to their ancestors. Even assuming that the award amount was received by the land owners, that will not stand in the way of claiming relief under section 24(2) of the New Act for the reason that the 4th respondent did not take the physical possession of the subject land. This view is taken recently by the Honble Apex Court in a decision reported in (2014)5 CTC page 857. It is further contended by the counsel for petitioners when the possession of the subject land was not at all by the 4th respondent under the old act, the respondents 2 and 3 do not have any right over the subject land. So, without any authority or right, the said exchange deed was executed. Further, the landowners are getting new right in respect of the subject land in view of the condition envisaged under section 24(2) of the new act. The revenue records produced by the respondents 2 and 3 did not relate to the subject land. Further, even after the said exchange deed, no rights were created in favour of any third parties as the possession of the subject land was not at all taken under the old act. The said exchange deed shall not prevent the petitioners from claiming the relief under the new act. Regarding the exchange deed dated 20.09.2006 the learned counsel for petitioners would submit that neither the petitioners nor their ancestors were not aware of the same. In fact, in WA No. 1012 of 2006, the 26th petitioner herein along with other co-owners had obtained an order on 07.08.2006. In the said order the Division Bench of this Court was pleased to set aside the rejection order of the first respondent dated 14.10.2004 regarding reconveyance and further directed to consider the request of the landowners on merits within three months from the date of receipt of the order. However, no order was passed by the first respondent regarding the request of the petitioners. The order dated 20.12.2006 mentioned in the counter in which the request of the petitioners said to have been rejected by the first respondent was not at all known to the petitioners. Hence in view of the various decisions by the Honble Apex Court and the Division Bench of this Court, as stated supra, the entire acquisition proceedings become lapsed.
14. Per contra, the second respondent had filed counter affidavit along with typed set of papers relating to the acquisition of the petitioners land. In the counter affidavit, the 2nd respondent submitted that the TNHB has proposed to implement the Housing Scheme in the Sub Urban area of Chennai by acquiring the patta lands in Mogappair Village for an extent of 513.82 acres. The 4(1) notification was approved by the Government in G.O. Rt. Noi.261 Housing & Urban Development dated 23.10.1975 and the gist of the 4(1) notification was published in the TNGG No.44c, supplement to Part II Section 2, dated 12.11.1975. The draft declaration under section 6 of the L.A. Act 1894 (Central Act 1 of 1894) was approved by the Government in G.O. Ms. No.1515, Housing and Urban Development Department, dated 09.11.1978. The gist of the draft declaration was published in the TNGG on 10.11.1978 and the award was passed. Mogappair West Scheme has been implemented during 1987 in the lands acquired in Mogappair Village. The land bearing S.F. No.604 with an extent of 0.44 cents had also been acquired vide Award No.3/1983, dated 31.03.1983. At the time of implementation of Mogappair West Scheme, it was not able to implement housing scheme in S. No.604 along with other lands due to non access.
15. The second respondent further submitted that the land bearing S. No.604 with an extent of 0.44 acres had also been acquired vide Award No.3/1983, dated 31.03.1983 and possession was taken over from the Land Acquisition Officer to TNHB on 22.06.1983. At the time of implementation of Mogappair West Scheme, it was not implement Housing Scheme in S. No.604 along with other lands due to non access. In the meantime, an extent of 0.20 acres in S. No.604 part of Mogappair Village was handed over to Thiru. Johnson and others through exchange deed as per the court order dated 05.07.2006 in Contempt Petition No.300 of 2006 as alternate land for the S. No.549/2 of Mogappair Village was utilized by TNHB. Hence, revised layout was prepared with the balance extent of 0.24 acres in S. No.604 and with an extent of 2.61 acres in S. No.604 of Mogappair Village and sent to the CMDA for approval dated 31.10.2006.
16. The second respondent further submitted that subsequently, the lands surrounding S. No.605 were developed by the private promoters and hence the land in S. No.605 gets access through S. No.604 to implement the housing scheme. The layout for providing residential plots in the lands in S. Nos. 604, 605 of Mogappair Village was sent to the CMDA vide this office letter No. SS/740/2000 dated 11.04.2001 for getting the approval, and the same was withdrawn by the TNHB in order to construct flat in the above land for providing shelter to more number of public.
17. The second respondent further submitted that the original land owners namely Govindarajan and three others filed WP. No. 2682 of 2004 in S. No.604 of Mogappair Village against the land acquisition. The above case was ordered by this Honble Court on 12.02.2004 to consider and pass order. As per the above order, the petitioner request was carefully considered and rejected by the Government vide Letter No.9598 /Lai(I)-2001-10, dated 14.10.2002. Against the above order, the petitioners Govindarajan and others have filed Writ Appeal No.3342 of 2004 before the Division Bench of this Court and the same was dismissed on 03.11.2008. The Honble Division Bench has already ordered on 07.08.2006 to the first respondent ie., the Government in WA No.1012 of 2006 against WP. No. 25117 of 2005 to consider the request of the petitioner. The request of the petitioner was carefully considered and rejected by the Government vide Letter No.24773/LA1(I)/06-4, dated 20.12.2006. However, the petitioners Govindarajan and others were filed WP No. 11190 / 2007 against the Land Acquisition S. No.604 of Mogappair Village and the above case was dismissed on 03.11.2008. In the meantime, an extent of 0.20 acres in S. No.604 part of Mogappair Village was handed over to Thiru Johnson and others through exchange deed as per the court order dated 05.07.2006 in Contempt Petition No. 300 of 2006 as an alternate land for the S. No.549/2 of Mogappair Village. Hence, the revised layout was prepared with the balance extent of 0.24 acres S. No.604 and with an extent 2.61 acres in S. No.605 of Mogappair Village and sent to the CMDA for approval on 31.10.2006. In further, the Honble Minister for Revenue and Housing Department has announced to take up new housing schemes by TNHB during 2008-09, the revised layout sent for approval to CMDA was again revised for the construction of flats 160 HIG flats in S. No.604 part and 605 with total extent of 2.85 acres has been prepared and approved by the Board in its Lr. No.TP TNHB No.1/2011 dated 11.01.2011. The same has been submitted for approval of CMDA through the Commissioner, Ambattur Municipality vide this office letter No. SS/740/2000, dated 02.03.2011, for getting approval of CMDA, Chennai.
18. In the meantime, the Honble High Court has ordered on 14.12.2010 against WP No.22974 of 2010 and directed the TNHB to take steps to get appropriate orders from the CMDA, within a minimum period of six months from the date of receipt of a copy of this order. The above order was received by the Division on 24.03.2011. Hence, the Commissioner, Ambattur Municipality sent the above approval submitted to the Member Secretary, CMDA vide their letter No.89/2011/F3 on 23.08.2011. The Member Secretary, CMDA instructed to remit the amount towards development charges and other charges vide Letter No.L1/11963/2011, dated 24.03.2012 and the amount of Rs.53,000/- towards Rs.50,000/- for development charges and Rs.3000/- for layout preparation charges) was remitted vide cheque No.27271 and 27272, dated 30.03.2012.
19. The second respondent submits that the CMDA has taken a polity decision to approve the skeleton layout before approving the pucca layout in order to avoid any deviation for allotment of amenities, such as road, park etc., in the scheme. Hence, the CMDA has approved the skeleton layout on 17.05.2012 vide Letter No. L2/11963/11. As per the approved skeleton layout the instruction of Member Secretary, CMDA, draft gift deed specifying the park area etc., was sent to the Zonal Officer/Executive Engineer, Zone-VII, Corporation of Chennai, Ambattur, Chennai-51 vide the second respondent office Letter No.SS/740/2000, dated 23.05.2012 to execute the above gift deed, resolution for the same is awaited from the Corporation Council.
20. The second respondent further submitted that there is no patta and other relevant records stands in the name of the writ petitioners. However, the writ petitioners are re-possessed the acquired land and also created the revenue and other records in their favour, without consent and knowledge of the Government of Tamilnadu and TNHB.
21. The second respondent further submitted that the petitioners have submitted as they are cultivating and also residing over the property. However, they have not produced any copy of the patta, property tax paid receipt and electricity service connection (EB) etc.
22. The second respondent further submitted that the writ petitioners are legal heirs of the original land owners, then they are entitled only to get the award of compensation alone, which was deposited in the name of original land owners,. Therefore the writ petitioners cannot claim any rights and title over the acquired land.
23. The second respondent further submitted that the grounds taken by the petitioners are nominal and the same denied as follows:-
(a)The land in S. No.604 of Mogappair Village with an extent of 0.44 acres was taken over from the Land Acquisition Officer on 22.06.1983. After taken over the above said land patta has been changed to the name of TNHB as patta No.375.
(b)As per the award No.3/83, dated 31.03.1983 the award amount was kept under work deposit on 31.03.1983. Further it is also informed the award amount in S. No. 600 and 604 of Mogappair Village was received by petitioners father on 16.08.1983 and further the petitioners father also filed the LAOP No.82/84 in Sub Court Poonamallee for EC payment and amount of Rs.2,63,100.70 was paid the Sub court Poonamallee vide SC. PNE/D1/555/dated 24.11.1987.
(c)The petitioners statement is not correct. As per the award 3/83 dated 31.03.1983 the land in S. No.604 of Mogappair Village with an extent of 0.44 acres has been handed over the TNHB from the land acquisition officer on 22.06.1983 and patta also changed to name of TNHB and patta No.375. Further, it is also informed that an extent of 0.20 acres in S No.604 part of Mogappair Village was handed over to the Johnson and others through exchange deed as per the court order dated 05.07.2006 in Cont. Petition No.300 of 2006 as an alternate land for the S. No.549/2 of Mogappair Village. The balance of land with an extent of 0.24 acres in S. No.604 part of Mogappair Village with possession of TNHB till date.
24. The second respondent further submitted that the award No.3/83 dated 31.03.1983 has been passed and the same has been accepted by the original land owners namely Govindarajan and 3 others. Subsequently they have accepted the Award of compensation with protest under section 18 of the Land Acquisition Act and then the LAOP No. 82 of 1984 filed before the Sub Court, Poonamallee. Therefore, once, they accepted the award of compensation and they cannot claim remedy under section 24(2) of the New Act.
25. The second respondent further submitted that the petitioners are not entitled to get any remedy under section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013. Because the possession of the land has been already taken by the Government of Tamilnadu and handed over the TNHB on 22.06.1983. In further, the award of compensation had also deposited in the name of original land owners.
26. The very competent Additional Government Pleader Mr.M.S. Ramesh, appearing for the respondents 1 and 4, contended that the possession of the lands were taken and handed over to the Tamil Nadu Housing Board by the Land Acquisition Officer and the compensation amount was also deposited in the name of the original owners and the same was accepted by them. He further contended that since the lands were already handed over to the Tamil Nadu Housing Board and the compensation was already accepted, the petitioners cannot avail the benefit under section 24(2) of the New Act. In view of the above said position the present writ petition is not maintainable for getting a relief under the New Act.
27. Relying on the counter affidavit and the documents in the typed set of papers filed by the respondents 2 and 3, the learned counsel, Mr. Viveka Vanan, argued that after observing all the formalities under the Old Act the entire acquisition proceedings attained finality. Further, the possession of the lands were also taken from the Land Acquisition Officer, Tamilnadu Housing Board Schemes on 22.06.1983 and the compensation amount awarded was deposited in the name of the original owners and they have accepted the compensation under protest. Further, a part of the land was exchanged in favour of third party as per court direction and in respect of that portion third parties are in possession and enjoyment. Now, the second respondent is also taking speedy action to develop the subject land retained by the TNHB along with S. No.605 for a housing scheme, for that, a layout has been preferred and sent for approval from the planning authorities. As such, at this stage, the writ petitioners prayer is not maintainable.
28. Having considered the submissions made by the Learned Counsel for the petitioners and the counsel for the respondents 1 to 4 and on perusal of the counter affidavit and the typed set of papers filed by the respondents 2 and 3, as well as the various decisions referred to above on Section 24(2) of the New Act, this court is of the view that :-
(i) In the counter affidavit filed by the second respondent it is stated that the possession of the land was taken from the Land Acquisition Officer on 22.06.1983 by the Tamilnadu Housing Board and consequently the patta stood in the name of the Tamilnadu Housing Board as per Patta No.375 and the second respondent is in possession of the land till date excluding the portion under the exchange deed which is in the possession of the third parties. But, no documents were produced before this Court, evidencing the taking the possession of the land by the 4th respondent ie., the Land Acquisition Officer, from the land owners under section 16 of the Old Act. The document relied on by the respondents 2 and 3 dated 22.06.1983 cannot be accepted as the same do not have any legal entity as the same is an inter-departmental one. In fact, the mode and manner of taking possession of the land under the Land Acquisition Act (Old Act) is clearly spelt out in the judgements reported in (i) Raghbir Singh Sherawat v. State of Haryana reported in (2012) 1 Supreme Court Cases 792 and (ii) PATASI DEVI v. STATE OF HARYANA reported in (2012) 9 Supreme Court Cases 503. Moreover, section 24(2) of the New Act stipulates that physical possession of the land should be taken by the Land Acquisition Officer under the Old Act. The patta stands in the name of TNHB which is relied on by the respondents 2 and 3 will not serve any purpose as the same do not relate to the subject land. Further, no document was produced to show that the third parties are in possession and enjoyment of the property given to them through exchange deed. Under the new act it is the obligation on the part of the state government to prove that the physical possession of the land was taken from the land owners, but it did not do so. Since, with regard to the contingency of taking physical possession as envisaged under section 24(2) of the New Act, the respondents are not in a position to sustain their contention by way of production of any records, the petitioners are entitled to get a relief under section 24(2) of the New Act.
(ii) It is stated in the counter affidavit of the second respondent that in respect of the present acquisition an award was passed in Award No. 3/1983, dated 31.03.1983 and the award amount was kept under work deposit on 31.03.1983. It is further stated that the petitioners father on 16.08.1983 received the compensation amount under protest and further LAOP No. 82 of 1984 was filed in the Sub Court, Poonamallee for enhancement payment and a sum of Rs.2,63,100/- was paid to the Sub Court, Poonamallee vide SC.PNE/D1/55/ dated 24.11.1987. To support the said statement in the typed set of papers the respondents 2 and 3 filed two documents, which is in pages 29 and 30. On perusal of the statement made in the counter affidavit as well as the documents pages 29 and 30 in the typed set of papers, it is quiet clear that those two documents do not provide any ample proof for the receipt of the award amount by the petitioners father or their ancestors as the same are not legible, clear and further there is no document for deposit of the amount in the Sub Court, Poonamallee. The respondents have not chosen to produce the original copy of the document filed in page Nos. 29 and 30. As rightly submitted by the counsel for the petitioners, even if this court comes to the conclusion that the award amount was paid to the petitioners ancestors, the same will not be put against the petitioners from claiming right under the new act on the ground that the physical possession of the lands was not taken by the Land Acquisition Officer from the landowners. In the absence of any concrete document to prove that the award amount was received by the petitioners father, the petitioners are entitled for a relief on the ground that the compensation was not paid under section 24(2) of the New Act.
29. Upon considering the facts and current legal position of the case and arguments advanced by the learned counsels on all sides and on perusal of the counter affidavit and the documents filed in the typed set and this courts view listed above as (i) and (ii), this court allows the writ petition and declares that the land acquisition proceedings initiated under the Land Acquisition Act, 1894, in respect of an extent of 0.44 acres comprised in S.F. No. 604 situated at Mogappair Village, Saidapet Taluk, Thiruvallur District, belonging to the petitioners, has lapsed in view of the Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (Act 30 of 2013). Accordingly ordered. There is no order as to costs.
05/11/ 2014
Index : Yes/No.
Internet : Yes/No.
ub
C.S.KARNAN, J.
ub
To
1.The Secretary to Government,
Government of Tamil Nadu,
Housing and Urban Development Department,
Fort.Saint George, Chennai 9.
2.The Chairman and Managing Director,
Tamil Nadu Housing Board,
Nandanam, Anna Salai,
Chennai 600 035.
3.The Executive Engineer and Administrative Officer,
Tamil Nadu Housing Board Unit,
Mogappair Division,
Chennai 600 101.
4.The Special Deputy Collector (Land Acquisition),
State Housing Board Schemes,
Nandanam, Anna Salai,
Chennai 600 035.
Pre Delivery Order made in
W.P.No.27934 of 2014
05/11/2014