Madras High Court
Periathambi vs The Collector
Author: M.Dhandapani
Bench: M.Dhandapani
____________
W.P. Nos.16365-16366/2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
02.08.2022 12.08.2022
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NO.16365 & 16366 OF 2015
Periathambi .. Petitioner in WP 16365/15
P.Elavendan .. Petitioner in WP 16366/15
- Vs -
1. The Collector
Cuddalore District
Cuddalore.
2. The Revenue Divisional Officer
Cuddalore.
3. Land Acquisition Officer/
The Special Tahsildar
(Land Acquisition) No.4
(Nagarjuna Oil Corporation Ltd.)
Cuddalore. .. Respondents
Writ Petitions filed under Article 226 of the Constitution of India praying
this Court to issue a writ of certiorarified mandamus to call for the records and
1
https://www.mhc.tn.gov.in/judis
____________
W.P. Nos.16365-16366/2015
quash Award No.3/1999 dated 20.12.1999 passed by the 3rd respondent as being
arbitrary, unconstitutional, malicious, illegal, null and void and consequently
direct respondents to return/reconvey the property measuring 6 acres in S.
No.183/2 in Kayalpattu Village, Cuddalore Taluk, Cuddalore District to the
petitioners.
For Petitioners : Mr. R.Gururaj
For Respondents : Mr. P.Sathish, AGP
COMMON ORDER
By the present petitions, acquisition pertaining to the year 1998-1999 is being put in issue on the ground that the relevant provisions of the Land Acquisition Act, 1894, have not been followed, resultantly the acquisition is bad in law and, therefore, the award should be quashed and the lands should be reconveyed back to the petitioners, as the said lands have not been utilized, for the purpose for which it was acquired till date.
2. It is the case of the petitioners that they are agriculturists and their lands were sought to be acquired for the purpose of Nagarjuna Oil Corporation 2 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015 Ltd. A large extent running to hundreds of acres were notified to be acquired by the respondents for industrial purpose and after considering the objections of the land owners, negativing the same, the lands were acquired by passing of award in Award No.3/1999 on 20.12.1999. It is the further case of the petitioners that pursuant to the award, compensation was also paid, which was received by the petitioners under protest, as the same was very meager and, accordingly, on the basis of the request of the petitioners, reference was made to the competent court, viz., I Addl. District Judge, Cuddalore, in LAOP Nos.49 and 50 of 2003 and, after hearing, compensation was enhanced by the Tribunal, which was put in issue in appeal before this Court.
3. When the matters stood thus, it is the case of the petitioners that they came to know of several irregularities and illegalities which are in gross violations of the provisions of the Land Acquisition Act, which strike at the root of the acquisition. It is the further case of the petitioners that the lands, which have been acquired, have not been utilized for the purpose for which it was acquired till date and, therefore, the petitioner are entitled for reconveyance of the lands. 3 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015 It is the further averment of the petitioners that physical possession is still with the petitioners.
4. It is the further case of the petitioners that though the lands were acquired under the Land Acquisition Act, 1894, however, the lands have been acquired for industrial purposes and in this regard, it is the averment of the petitioners that the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 received the assent of the President on 21.5.1999 and came into force on 21.9.2001. It is the further averment of the petitioners that the said Act has overriding provision over all other laws and where award has not been passed pending acquisition, the said Act is applicable. It is the further averment of the petitioners that though award was passed in the year 1999, but the said award having been passed by an authority not vested with power and jurisdiction to pass the award, the said award is bad in law and the award suffering the vice of illegality, there is no award in the eye of law and, therefore, in such a scenario, the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 alone has to be invoked. For the aforesaid reasons, the present petitions have been filed questioning the acquisition.
4 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015
5. Learned counsel appearing for the petitioners submit that the mandatory provisions, which authorize only the Collector to conduct the enquiry, hear the objections and pass the award has not been followed and the award has been passed by an authority who is not vested with any jurisdiction. It is the further submission of the learned counsel for the petitioner that the permission of the appropriate Government, as is provided u/s 11 of the Act has not been obtained, which renders the acquisition bad.
6. It is the further submission of the learned counsel that provisions of Tamil Nadu Acquisition of Land for Industrial Purposes Act alone should be invoked and the invocation to Land Acquisition Act, 1894 is impermissible, as there is no award in the eye of law as the award passed in the year 1999 has been passed by an authority, who has no jurisdiction to pass the said award. It is the further submission of the learned counsel for the petitioners that till date possession is with the petitioners and that the lands, which have been acquired, have not been put to use till date, which results in the cancellation of the acquisition proceedings. It is the further submission of the learned counsel that 5 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015 the lands having not been utilized till date and possession also having not been taken, the lands should be reconveyed back to the petitioners under Section 48 (B) of the Land Acquisition Act.
7. In the alternative, learned counsel appearing for the petitioners submitted that this Court may permit the petitioners to challenge the notification issued u/s 4 (1) of the Act and further prayed that this Court may issue appropriate directions to the respondents to pay the compensation quantified to the petitioners.
8. Per contra, learned Addl. Government Pleader appearing for the respondents, referring to the averments made in the counter affidavit filed by the Revenue Divisional Officer, submitted that pursuant to the acquisition proceedings, award was passed in Award No.3/1999 dated 20.12.1999. It is the further submission of the learned Addl. Government Pleader that the writ petition itself is not maintainable either on facts or on law. It is the further averment of the learned Addl. Government Pleader that pursuant to the orders of the Government in G.O. Ms. No.749 dated 12.11.1998 for acquiring 178.01.0 6 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015 Hectares to establish SIPCOT, vast extent of lands, including the lands of the petitioners were acquired by the 3rd respondent by following the procedures contemplated in the Land Acquisition Act. It is the further submission of the learned Addl. Government Pleader that not only the petitioner received the compensation under protest u/s 31, but also on the request of the petitioners, reference was made to the appropriate Court for enhancement of compensation, which has also gone in favour of the petitioners. It is therefore the submission of the learned Addl. Government Pleader that once the petitioners have accepted the compensation and sought enhancement, it is not open to the petitioners to question the acquisition proceedings, leave alone the legality of the various provisions, after a span of almost two decades and a half. It is the further submission of the learned Government Pleader that pursuant to the acquisition, the compensation amount was paid to the petitioners, which has been received by the petitioners and possession has also been taken by the respondents on 17.11.1999 and handed over to SIPCOT and the revenue records have also been mutated in the name of the SIPCOT and since then, possession has been with SIPCOT. Therefore, at this belated point of time, it is not open to the petitioners 7 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015 to question the acquisition process and, therefore, the present petitions deserve to be dismissed.
9. Reply to the aforesaid counter has been filed by the petitioners reiterating the averments made by them in the affidavit filed in support of the petitions. In addition to the aforesaid contentions, it is the stand of the petitioners that possession has not been taken as no materials have been placed to show possession having been taken. It is the further submission of the petitioners that the land abuts the sea shore, which is within the coastal regulation zone and, therefore, the said land cannot be used for the purpose for which it was acquired. It is the further stand of the petitioners that compensation amount in entirety has not been paid to the petitioners, as the respondents have not been able to obtain the amount from the requisitioning body, as the requisitioning body itself stood wound up and, therefore, the petitioners could not be compensated and the inability of the requisitioning body to pay the amount cannot be a ground to make the petitioners suffer as the right of the petitioners to the land is protected under Article 300(A) of the Constitution 8 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015 and, therefore, the inability to pay the compensation should result in the reconveyance of the land back to the petitioners.
10. This Court gave its careful consideration to the submissions advanced by the learned counsel appearing on either side and perused the materials available on record.
11. The acquisition of lands had taken place in the year 1998-1999 following the provisions of the Land Acquisition Act and an Award in Award No.3/99 dated 20.12.1999 had come to be passed determining the compensation payable to the petitioners. It is also admitted by the petitioners that the compensation amount determined was received by the petitioners under protest and they sought for reference seeking enhancement of compensation and reference was also made to the competent court in LAOP Nos.49 and 50/03 and the Reference Court had also enhanced the compensation payable to the petitioners. It is also not in dispute that appeal against the said enhancement was filed before this Court with delay and the status of the said appeal is not known.
9 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015
12. Be that as it may. The whole acquisition process had taken place in the year 1998-1999 and the petitioners have come before this Court filing the present petition alleging that the procedural formalities in the acquisition process has not been followed. The grievance expressed by the petitioners is that the award has not been passed by the Collector, but has been passed by the Land Acquisition Officer, which is not what the Act intends. Further, it is alleged that approval of the Government before the Award is published has also not been obtained. Equally there are other allegations with regard to infringement of other provisions of the Land Acquisition Act with regard to the above acquisition process.
13. Though the aforesaid allegations relating to non-compliance of very many provisions of the Land Acquisition Act, 1894, is sought to be raised by the petitioners, however, the same cannot be accepted for two-fold reasons. Firstly, the petitioners have accepted the award and have received the compensation under protest and sought enhancement of compensation, which has also been awarded. In effect, the petitioners have accepted the acquisition proceedings 10 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015 resulting in the passing of the award. Once the award is passed, no writ petition would be maintainable challenging the acquisition proceedings as has been held in Ramalingam – Vs – State of Tamil Nadu (2005 (3) CTC 1`).
14. Further, it is to be pointed out that the petitioners have received the compensation and even sought for enhancement by seeking reference, which has also been made and in the said reference, the Reference Court had enhanced the compensation. That being the case, the petitioners having accepted the award and also sought enhancement of compensation over and above the amount awarded by the land acquisition officer, the stand of the petitioners that certain provisions of the Act have not been complied with, which vitiates the acquisition cannot be permitted to be raised at this point of time.
15. The mere submission that it has come to the knowledge of the petitioners that there has been non-compliance of certain provisions of the Act, at a belated point of time, which prompted the petitioners to file the present petition cannot be acceded to. The provisions, which the petitioners allege is that the Collector has not passed the award or that the Government has not 11 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015 granted approval to the award, which are sought to be raised by the petitioners cannot be raised at this distant point of time. Further the authority, who has been entrusted with the task of acquisition of land by the Government has passed the award and in the absence of any particular material to show that the said authority was not vested with such power to pass the award, the stand of the petitioner that the award is non est in law does not merit acceptance. Further, the award passed having been accepted and also tested before the Reference Court in the enhancement proceedings would prevent the petitioners from raising the aforesaid plea of non-compliance as the petitioners have, by their acceptance of the award, approved the procedures followed by the respondents. Therefore, it is too late in the day for the petitioners to put forth the aforesaid contentions.
16. Insofar as the contention relating to possession having not been taken and, therefore, the petitioners would be entitled to the benefit of the decision in Indore Development Authority’s case (supra) relating to Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and 12 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015 Resettlement Act, 2013, for better appreciation, the relevant portion of the said decision is quoted hereunder :-
“366. In view of the aforesaid discussion, we answer the questions as under:
1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1.1.2014 the date of commencement of Act of 2013, there is no lapse of proceedings. Compensation has to be determined under the provisions of Act of 2013.
2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the Act of 2013 under the Act of 1894 as if it has not been repealed.
3. The word or used in Section 24(2) between possession and compensation has to be read as nor or as and. The deemed lapse of land acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.
4. The expression 'paid' in the main part of Section 24(2) of the Act of 2013 does not include a deposit of compensation in court.13
https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015 The consequence of non-deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the Act of 1894 shall be entitled to compensation in accordance with the provisions of the Act of 2013. In case the obligation under Section 31 of the Land Acquisition Act of 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non- deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the Act of 2013 has to be paid to the "landowners" as on the date of notification for land acquisition under Section 4 of the Act of 1894.
5. In case a person has been tendered the compensation as provided under Section 31(1) of the Act of 1894, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Act of 2013.
6. The proviso to Section 24(2) of the Act of 2013 is to be treated as part of Section 24(2) not part of Section 24(1)(b). 14 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015
7. The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/ memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse under Section 24(2).
8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.
9. Section 24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013, i.e., 1.1.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.” (Emphasis Supplied) 15 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015
17. This Court is in respectful agreement with the ratio laid down by the Hon’ble Supreme Court in the aforesaid decision, in which it has been categorically held that deemed lapse of land acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse. From the above, it is evident that there should be satisfaction of either of the limbs of the acquisition proceedings, viz., either taking of possession or payment of compensation in which circumstances, the acquisition proceedings would not get lapsed.
18. In the case on hand, the materials available on record unerringly establish that the benefit of the said decision would not enure to the petitioners. The petitioners have received the compensation under protest and have also sought for reference, which has resulted in the reference in LAOP Nos.49 and 50/03 in which enhanced compensation has been awarded. Immediately on the 16 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015 passing of the award, the land vests with the Government and the petitioners also having received the compensation, there would be no lapse of acquisition proceedings and the ratio laid down in the aforesaid decision would not be available to the petitioners.
19. Further, the mere stand of the petitioners that their lands are surrounded by barbed wire fence, which would unerringly prove that possession is still held by them would not be a ground to hold that the acquisition proceedings have lapsed, in view of the ratio laid down in the decision aforesaid. Further the stand of the petitioners that the provisions relating to acquiring property within the coastal regulation zone have not been followed also does not merit acceptance for the reason that such a stand is taken for the first time at this belated point of time and more so, the petitioners, on their own accord claim that the lands are agricultural lands. Such being the case, the stand of the petitioners that the lands are near the sea shore defies logic as no agricultural operations could be carried in the near vicinity of a sea shore. 17 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015
20. Insofar as the contention that Tamil Nadu Acquisition of Land for Industrial Purposes Act alone would apply also cannot be accepted for the simple reason that the said Act had come into force on 21.09.2001, but the award in the present acquisition proceedings had been passed as early as on 20.12.1999 and possession has also been taken by the respondents and handed over to SIPCOT much before the coming into force of the aforesaid Act. Such being the position, the said Act would, in no way be applicable nor available to the petitioners and the plea raised in this regard deserves to be negatived.
21. The petitioners further seek reconveyance of the lands which were acquired on the ground that the lands have not been utilized for the purpose for which it was acquired. However, such a contention cannot be countenanced for the simple reason that possession of the lands have been taken over and handed over to SIPCOT more than a decade and a half back and it has been put to use by SIPCOT. Further, Section 48-B of the Land Acquisition Act, which forms the basis for the above plea provides that where the land vest with the Government is not required for the purpose for which it was acquired or for any other public purpose, the Government may transfer such land to the original owner who is 18 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015 willing to repay the amount paid to him under this Act for the acquisition of such land inclusive of the amount referred to in sub-section (1-A) and (2) of Section 23.
22. In the case on hand, the petitioner blows hot and cold. On the one hand, the petitioners contend that possession is still with them, yet on the other hand, the petitioners seek reconveyance of the lands u/s 48-B, as the lands vests with the Government. It is to be pointed out that it is for the Government to decide about the utilization of the lands so acquired and this Court cannot step into the shoes of the Government and give any affirmative direction for reconveyance of the lands, more so, when it is the categorical stand of the respondents that possession has already been handed over to SIPCOT. Therefore, the present contention also does not merit acceptance.
23. Further, it is to be pointed out that even if at all for the sake of argument it is to be presumed that the petitioners could seek reconveyance, yet it is to be pointed out that the relief under Article 226 of the Constitution is a discretionary remedy and it is available only to a person who is diligent in approaching the Court within a reasonable time. In the instant case, the 19 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015 acquisition having been made in the year 1998-1999 and compensation having been received in the year 1999, yet the petitioners, only in the year 2015 have come before this Court seeking quashment of the award and also reconveyance of the lands, which have been acquired in the year 1999. Therefore, on the ground of delay and laches, the prayer sought for by the petitioners cannot be acceded to. The above view of this Court finds concurrence from the decision of this Court in Sivanandam – Vs – Govenrment of Tamil Nadu (2005 (2) MLJ 65 (Mad)).
24. Further, the claim of the petitioners that the lands still remain unutilized and, therefore, the same could be reconveyed back to the Government also cannot be accepted as it is within the domain of the Government to decide about utilization of lands so acquired and the only claim which the petitioners could make is payment of compensation as ordered by the Reference Court in LAOP Nos.49 and 50 of 2003.
25. For all the reasons aforesaid, this Court is of the considered view that the petitioners have miserably failed to make out any case and, therefore, these 20 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16365-16366/2015 writ petitions deserve to be dismissed. Accordingly, both the writ petitions fail and the same are dismissed. However, there shall be no order as to costs. The respondents are directed to pay the enhanced compensation awarded to the petitioners in LAOP Nos.49 and 50 of 2003 within a period of eight weeks from the date of receipt of a copy of this order, if not already paid. The petitioners are at liberty to work out their remedy seeking enhanced compensation in the manner known to law.
12.08.2022
Index : Yes / No
Internet : Yes / No
GLN
To
1. The Collector
Cuddalore District
Cuddalore.
2. The Revenue Divisional Officer
Cuddalore.
3. Land Acquisition Officer/
The Special Tahsildar
(Land Acquisition) No.4
21
https://www.mhc.tn.gov.in/judis
____________
W.P. Nos.16365-16366/2015
(Nagarjuna Oil Corporation Ltd.)
Cuddalore.
22
https://www.mhc.tn.gov.in/judis
____________
W.P. Nos.16365-16366/2015
M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN
W.P. NO.16365 & 16366 OF 2015
Pronounced on
12.08.2022
23
https://www.mhc.tn.gov.in/judis