Madras High Court
The District Collector vs S.Devarasu
Author: Senthilkumar Ramamoorthy
Bench: A.P.Sahi, Senthilkumar Ramamoorthy
W.A.No.632 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 29.10.2020
DELIVERED ON: 14.12.2020
CORAM :
THE HON'BLE MR.A.P.SAHI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.A.No.632 of 2020
1 The District Collector
Villianur District
Puducherry.
2 The Deputy Collector (Revenue)
South-cum-Land Acquisition Officer
Puducherry.
3 The Executive Engineer
National Highways Department
Public Works Department
Pondicherry.
4 The Government of Pondicherry
Pondicherry. .. Appellants
vs
S.Devarasu .. Respondent
PRAYER: Appeal under Clause 15 of the Letters Patent against the
order dated 26.02.2018 made in W.P.No.43007 of 2016.
_______
Page 1
http://www.judis.nic.in
W.A.No.632 of 2020
For Appellants : Mrs.N.Mala
Government Pleader
(Puducherry)
For Respondent : Mr.V.Raghavachari
JUDGMENT
THE HON'BLE CHIEF JUSTICE Administrative authorities are to be held to account on standards by which they profess their actions to be judged. A defined procedure binds the authority that should be scrupulously observed. The words articulated by Justice Felix Frankfurter in U.S.Supreme Court decision in the case of Vitarelli v. Seaton, 359 U.S. 535 (1959), “He that takes the procedural sword shall perish with the sword” still hold good. Procedure in matters of deprivation of property of an individual by the State is to be tested on the principles of Article 300-A of the Constitution of India, which now has been interpreted to partake the character of human rights. The State in matters of acquisition and compensation can neither be discriminatory nor can it offset its liability on simple technicalities. The Courts may deny relief while exercising _______ Page 2 http://www.judis.nic.in W.A.No.632 of 2020 their respective jurisdiction on account of binding limitations, laches or unexplained inordinate delay, but that by itself in peculiar circumstances may per se not be a ground available to the State to violate the equality clause. This case also reflects peculiar circumstances that has left the Court cornered in a somewhat difficult position while weighing the consequences.
2. This writ appeal is directed against the judgment of the learned Single Judge dated 26.2.2018, and has been preferred by the District Collector, Villianur District, Union Territory of Puducherry, as well as its other authorities, questioning the direction given by the learned Single Judge to redetermine the right of the respondent/petitioner to receive compensation, and with a further direction to complete the proceedings within the time frame indicated therein, in respect of Plot R.S.No.180/4B of Kurumbapet Village, Puducherry.
3. The respondent/petitioner came up with a plea that he purchased the land in question through a registered sale deed on _______ Page 3 http://www.judis.nic.in W.A.No.632 of 2020 30.8.2006 from two of his vendors, namely Pakkri and Soundarambal. The Government of Puducherry proceeded to acquire the land in terms of the Land Acquisition Act, 1894 (for brevity, the “1894 Act”) for the construction of a road south of Puducherry-Villianur Railway Line, bye-passing Arumparthapuram- Natesan Nagar segment of NH45A at Kurumbapet and Odiampet Revenue Villages. A notification came to be issued under Section 4 of the 1894 Act on 29.9.2006, that came to be published in the gazette on 30.9.2006, and the urgency clause was invoked under Section 17(4) of the 1894 Act dispensing with the provisions of enquiry under Section 5-A of the 1894 Act.
4. The notification under Section 6 of the 1894 Act was issued on 30.11.2006, and gazetted on 1.12.2006. This date assumes significance, as one of the basic arguments on facts advanced by the learned counsel for the respondent/petitioner is on the strength of Section 11A of the 1894 Act to the effect that the notification having been made after more than two years, with no award having been made, the proceedings would lapse. _______ Page 4 http://www.judis.nic.in W.A.No.632 of 2020
5. It is in the year 2008 that the enquiry notice was issued on 25.7.2008 in terms of Section 17(3A) of the 1894 Act, and notices under Section 9(3) and 10 of the 1894 Act were issued on 3.12.2008. On the issue of notice, one of the arguments advanced by the learned counsel for the respondent/petitioner is that the name of the original owner P.Kalidas, son of Ponnusamy, had been mentioned therein, and which continued in the award enquiry notice, as also the other documents that are on record, and it has been urged that there was no evidence of any service of notice on Kalidas, or his subsequent vendees, or even on the respondent/ petitioner. This fact was sought to be substantiated based on the recital contained in the award itself that was pronounced on 16.11.2009, where it has been categorically mentioned that neither the land owner P.Kalidas, nor any interested person appeared for the award enquiry. In the award dated 16.11.2009, the compensation amount was shown as court deposit as against the plot number presently involved, reflecting the name of P.Kalidas as the land owner.
_______ Page 5 http://www.judis.nic.in W.A.No.632 of 2020
6. It is the specific case of the respondent/petitioner that Kalidas had already parted with the land to the vendors of the respondent/petitioner and was dead much prior to the notifications. The land ownership had changed, about which no enquiry was made.
7. According to the pleadings, the notification under Section 12(2) of the 1894 Act was issued on 22.9.2015 intimating about taking over possession, and which actually took place on 28.9.2015.
8. There is an interregnum fact which deserves to be taken notice of, as that was one of the arguments advanced on behalf of the respondent/petitioner, namely that after the passing of the award on 16.11.2009, nine tenure holders, other than the respondent/petitioner or his vendors, filed W.P.No.7070 of 2010.
9. The aforesaid writ petition filed by nine persons was entertained and an interim order was passed on 13.4.2010. The _______ Page 6 http://www.judis.nic.in W.A.No.632 of 2020 interim order is extracted herein under:
“Government Advocate appearing for respondents seeks further time to get instructions. The main grievance of the petitioner is that the award has been passed beyond the time limit prescribed under Section 11A of the Land Acquisition Act 1894. Prima facie case has been made out.
There will be an order of interim stay until further order of court. Notice.”
10. The aforesaid interim order was modified on 21.9.2015 limiting the same only for the nine petitioners therein having noticed the fact that apart from the said nine owners, none else had challenged the notification which covered almost 62 tenure holders. The modified interim order dated 21.9.2015 is extracted herein under:
“The petitioners have challenged the acquisition proceedings in respect of their lands which are described as follows:-
_______ Page 7 http://www.judis.nic.in W.A.No.632 of 2020 Sl. Name of the Survey No. Name of Extent No. owner/ Village in petitioner Hectare 1 T.Nandhagopal R.S.No.82/2B Odhiyampet 0-60-43 2 B.Devi R.S.No.66/1B & Odhiyampet 0-15-61 66/4B 0.04-26 3 A.Sundari R.S.No.66/1B & Odhiyampet 0-15-61 66/4B 0.04-26 4 S.Parthasarathy R.S.No.65/1 Odhiyampet 0-13-18 5 R.Manuchozhan R.S.No.68/9B Odhiyampet 0-01-97 6 M/s.Vishnu Saw R.S.No.180/3B Kurumbapet 0-04-93 Mills 7 K.Sukanya R.S.No.176/1B/ Kurumbapet 0-00-73 2 8 C.Jothi R.S.No.177/2B Kurumbapet 0-04-52 9 P.Dinakaran R.S.No.181/2B Kurumbapet 0-10-14
2. The notification covers properties of 62 owners whereas 9 owners alone have approached this Court and the rest, namely, 53 owners, have not challenged the acquisition proceedings before this Court or anywhere. However, in view of interim stay of the entire notification covering the properties of 62 owners, possession could not be taken. In view of that, the learned Government Advocate seeks modification of the interim order of stay dated 13.4.2010 in respect of the petitioners' properties alone.
3. Taking into consideration the acquisition is for the _______ Page 8 http://www.judis.nic.in W.A.No.632 of 2020 purpose of laying bypass road in National Highways and also for construction of overbridge to an extent of 2.5 KMs in the revenue district of South Villianur, Puducherry and 53 owners have not approached this Court, it is appropriate to restrict the interim order earlier granted, to the properties of 9 land owners only, namely, the petitioners herein - T.Nandhagopal, B.Devi, A.Sundari, S.Parthasarathy, R.Manuchozhan, M/s.Vishnu Saw Mills, K.Sukanya, C.Jothi and P.Dinakaran and accordingly, it is ordered. There shall be no interim order in respect of the lands of remaining owners, namely, 53 owners. There will not be any prohibition for the respondent to go ahead with the project.
Call the matter on 28.09.2015.”
11. It may be noted that the possession was sought to be taken immediately thereafter on 28.9.2015, as narrated herein above.
12. On 18.11.2015, a reference was made under Section 30 of the 1894 Act by the Collector in respect of the land in question _______ Page 9 http://www.judis.nic.in W.A.No.632 of 2020 recording that the land owner has failed to produce the original documents for effecting payment, even though 100% compensation has been deposited under Section 31(2) of the 1894 Act and, therefore, reference was being made to determine the rightful ownership and apportionment of compensation. This reference also contains the name of the earlier recorded tenure holder P.Kalidas, son of Ponnusamy. This fact is necessary to be noted as the contention of the respondent/petitioner is that once he had purchased the property through a registered deed on 30.8.2006, then there was no occasion for mentioning the name of the erstwhile owner Kalidas as recorded tenure holder, who had died long ago before the notification, and the ownership had changed hands. This fact has also been asserted by the respondent/ petitioner that he had no knowledge, nor any notice was served on him either at any point of time before or while making the aforesaid reference under Section 30 of the 1894 Act, and which was without any enquiry or collecting any information.
13. The writ petition filed by the nine persons, being _______ Page 10 http://www.judis.nic.in W.A.No.632 of 2020 W.P.No.7070 of 2010, came to be decided on 28.1.2016, along with other writ petitions, which was partly allowed in the terms recited in paragraphs (14) to (18) of the said judgment extracted herein under:
“14. With regard to W.P.No.7070 of 2010, in the preceding paragraphs, the factual and legal position have been set out, for the reasons already mentioned the decision in the case of Laxmi Devi, (supra), would squarely be applicable to the facts and circumstances of the case. Moreso, when the Land Acquisition Officer, the second respondent in his counter affidavit had candidly admitted that the possession could not be taken. That apart, 80% of the compensation is required to be paid, which is mandatory in terms of the statutory provisions. As could be seen from the proceedings of the award enquiry, dated 12.12.2008, funds were not provided on the date of passing the award as the proceedings recorded that necessary funds will be provided by the Public Works Department. Further, while dealing the issue as to whether interest has to be paid, it has been stated that as the lands have not yet been taken over possession, there is no need to pay interest. Further, it is a matter of record that the requisitioning body namely Public Works Department _______ Page 11 http://www.judis.nic.in W.A.No.632 of 2020 had placed the funds at the disposal of the Land Acquisition Officer on 10.06.2009, to the tune of Rs.70,00,000/-, and further a sum of Rs.73,83,588/- on 31.07.2009 and it is admitted that the said amount is not 80% of the compensation, but close to 80%. In my view, when the statute prescribes the quantum of compensation payable to be at 80%, there can be no approximation of the said amount and it shall be in accordance with the statute. Thus, the acquisition proceedings have to be held to have been lapsed by applying the law laid down in the case of Laxmi Devi, (supra).
15. Having held so, it has to be seen as to whether the land should be restored to the landowners especially when the project is of public importance and an extent of 2.25 kms of the bye-pass road has already been formed and after the interim order was vacated, the possession of the lands have been taken over in respect of the 53 landowners and the same has been handed over to the Highways Department and preparatory works have already commenced. Thus, balancing the interest of the nine landowners, petitioners in W.P.No.7070 of 2010, and interest of the public, this Court is of the view that though the acquisition proceedings is said to have been lapsed on technical _______ Page 12 http://www.judis.nic.in W.A.No.632 of 2020 grounds, possession should be taken over by the respondents to enable formation of the road. However, this does not mean that the landowners' interest should be given a go-bye inspite of having succeeded in the Writ Petition. During the course of arguments, submission was made that the landowners are interested in getting fair compensation and it appears that no fruitful results came out of the discussion between the landowners and the official respondents.
16. Be that as it may, having held that the notification insofar as it relates to the nine petitioners in W.P.No.7070 of 2010, is lapsed, liberty is granted to the respondents to issue fresh notification in respect of those lands and in the interregnum, the petitioners are directed to surrender possession of the land and their claim for compensation shall be computed based on the date on which the fresh notification as directed will be issued.
17. In the result, Writ Petition in W.P.No.7070 of 2010, is partly allowed and the acquisition proceedings in respect of the nine petitioners is held to have been lapsed with direction to the respondents to issue fresh notification for acquisition of the lands, within a period of two weeks from the date of receipt of a copy of this order with a further direction to the petitioners to _______ Page 13 http://www.judis.nic.in W.A.No.632 of 2020 surrender the possession of the lands to the respondents so as to enable the project which is of public importance to proceed further.
18. For the reasons stated above, W.P.No.7070 of 2010, is partly allowed with direction as aforesaid and W.P.Nos.36731, 36586, 38427 of 2015 and 1817 of 2016 are dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.”
14. A writ appeal, being W.A.No.279 of 2016, was preferred by the writ petitioners of W.P.No.7070 of 2010 as they were aggrieved by the direction of the learned Single Judge whereby they had been called upon to surrender possession and the authorities were directed to issue a fresh notification, on the ground that once the proceedings had lapsed the learned Single Judge could not have issued the said directions after allowing the writ petition. The said writ appeal was allowed by the Division Bench on 16.3.2016, the judgment whereof is extracted herein under:
“This intra-Court appeal is focussed against the order dated 28 January 2016 passed in W.P. No.7070 of 2010.
_______ Page 14 http://www.judis.nic.in W.A.No.632 of 2020 2 To avoid prolixity, the parties are referred to as per their arraignment in this intra-Court appeal.
3 The facts in brief leading to the filing of this intra-
Court appeal are that the appellants filed the writ petition being W.P. 3 No.7070 of 2010 calling in question, the justifiability of the award dated 16 November 2009 passed by the second respondent on the ground that entire land acquisition proceedings qua his land has lapsed in view of not adhering to the conditions stipulated in Sections 11-A and 17(3-A) of the Land Acquisition Act, 1894 (for brevity “the Act”). The learned Single Judge, holding that the land acquisition proceedings has lapsed, directed the respondents to issue a fresh notification for acquisition of land, besides the appellants to surrender possession of the land in question to the respondents so as to enable the project of public importance to proceed further. Feeling aggrieved by the said order, the appellants are before us.
4 The appellants' only contention is that after having declared that the land acquisition proceedings has lapsed, the learned Single Judge committed an error in directing them to surrender possession of land to the _______ Page 15 http://www.judis.nic.in W.A.No.632 of 2020 respondents.
5 The main plank of argument of the learned counsel for the appellants is that having accepted the appellants' contention that the respondents had not adhered to the conditions stipulated in Section 11-A and 17(3-A) of the Act and having held that the land acquisition proceedings stood lapsed and also having issued a direction to the respondents to issue a fresh notification in respect of the land in question, the direction to the appellants to surrender possession of the land to the respondents, is excessive and without jurisdiction.
6 The learned Government Pleader appearing for the respondents submits that the land in question is required for construction of by-pass road and as such, keeping public interest in mind, such a direction was issued by the learned Single Judge. Thus, the said direction warrants no interference.
7 Be that as it may, once the land acquisition proceedings is held as lapsed or illegal, no direction can be issued to the land owner to surrender the land without initiating a fresh acquisition proceedings. No doubt, it is true that in matters of land acquisition, _______ Page 16 http://www.judis.nic.in W.A.No.632 of 2020 public interest is of utmost importance rather than the interest of the individuals. But, at the same time, without acquiring the land in accordance with law, the land owner cannot be forced to sacrifice his land, inasmuch as he is entitled to a fair compensation and also to question the acquisition proceedings in accordance with law.
8 In such view of the matter, we are of the considered opinion that the direction given by the learned Single Judge to the appellants to surrender the land to the respondents, after having declared the land acquisition proceedings as lapsed or invalid, is unsustainable in the eye of law. Accordingly, the direction given by the learned Single Judge to the appellants to surrender possession of the land is set aside.
The writ appeal stands disposed of accordingly. Costs made easy. Connected Miscellaneous Petition is closed.”
15. The taking over of possession of the land of the aforesaid nine persons was excluded under the proceedings dated 22.2.2016. The State and its authorities called upon the said nine land owners _______ Page 17 http://www.judis.nic.in W.A.No.632 of 2020 to negotiate the compensation that was discussed and indicated in the proceedings dated 26.8.2016 that came to be chaired by the Minister for Public Works, Public Works Department, Government of Puducherry. However, the said negotiation did not yield any results. In the meeting held on 8.3.2017, it was resolved to acquire the land under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, (for brevity, “the 2013 Act”) as the compensation amount could not be settled. This was followed by a Social Impact Assessment and a notification was issued on 1.12.2018, followed by the Rehabilitation and Resettlement Scheme that was published on 14.5.2019. The State proceeded to issue a declaration under Section 19(2) of the 2013 Act read with Rule 25 of the Puducherry RFCTLARR Rules, 2016. The amount that was calculated came to be made available with the District Collector. The balance part of the compensation was also released by the Government of Puducherry vide G.O.Rt.No.14, dated 26.9.2019.
16. The aforesaid nine petitioners filed a writ petition, being _______ Page 18 http://www.judis.nic.in W.A.No.632 of 2020 W.P.No.26830 of 2019, before this Court apprehending forcible dispossession and prayed for a mandamus, but the same was dismissed on 30.10.2019. Aggrieved, the nine petitioners filed W.A.No.3943 of 2019, in which an interim order was granted in favour of the appellants (above mentioned nine petitioners), whereafter the compensation amount tendered by the Government came to be released and the appeal was disposed of with liberty to the nine appellants to seek their remedy, if they had any grievance with regard to the enhancement of compensation or otherwise that had been tendered and had been received by them. The aforesaid proceedings, therefore, witnessed a closure with the aforesaid final pronouncement of this Court making it open to the said nine appellants to claim enhanced compensation.
17. There is another development that deserves notice.
18. As noted above, W.A.No.279 of 2016 in respect of the nine petitioners in W.P.No.7070 of 2010 was allowed on 16.3.2016. The petitioners in other writ petitions that had been decided on _______ Page 19 http://www.judis.nic.in W.A.No.632 of 2020 28.1.2016 along with W.P.No.7070 of 2010, and the petitioner in another judgment dated 1.6.2016 arising out of the same proceedings filed separate writ appeals, being W.A.No.776, 777, 778 and 806 of 2016, as their writ petitions had been dismissed by the learned Single Judge on the ground that the petitions had been filed beyond October and November, 2015 and in 2016, and that the said petitioners were fence-sitters. Paragraph (13) of the common judgment dated 28.1.2016 in respect of these matters is extracted herein under:
“13. As pointed out earlier, the first Writ Petition being W.P.No.7070 of 2010, was filed by nine petitioners and the Writ Petition was entertained and an interim order was granted. Subsequently, the respondent sought for modification of the interim order stating that the notification covers the properties of 62 landowners and whereas nine landowners alone have approached the Court and the remaining 53 owners have not challenged the acquisition proceedings before this Court or any where and owing to the interim stay of the notification/proceedings in its entirety covering the properties of all 62 landowners, possession could not be taken. Taking into consideration, the said _______ Page 20 http://www.judis.nic.in W.A.No.632 of 2020 submission and that the purpose for acquisition is for farming a bye-pass road, it was thought fit to restrict the interim order only to the properties of the nine landowners and accordingly, it was held that there can be no interim order in respect of the remaining 53 landowners, there will be no prohibition for the respondents to go ahead with the project. Thus, the Writ Petitions which were filed during October 2015, i.e., after about one month after the interim order granted in W.P.No.7070 of 2010, was modified on 25.10.2015, are liable to be summarily rejected on the ground of unexplained delay and laches. The petitioners who came before this Court in 2015 were very well aware that nine landowners had approached this Court in 2010 itself and taking advantage of the fact that there was a stay of the entire proceedings, these petitioners appear to have been “sitting on fence” and watching the proceedings and it is too late for them to now approach this Court contending that they are also similarly placed as that of the nine landowners, the petitioners in W.P.No.7070 of 2010.
Therefore, this Court has no hesitation to dismiss the Writ Petition, which have been filed beyond October and November 2015 and latest being filed during 2016 and accordingly, W.P.No.36568, 36713 & 38428 of 2015, 18187 of 2016, are dismissed.” _______ Page 21 http://www.judis.nic.in W.A.No.632 of 2020
19. The writ appeals filed against the said part of the judgment were dismissed on 23.11.2017 holding that those writ petitioners/appellants were fence-sitters and, therefore, they had no right to seek their remedy under the extra-ordinary jurisdiction of this Court.
20. The respondent/petitioner on 15.9.2016 moved a representation before the Deputy Collector (Revenue) South, Villianur, claiming ignorance about the proceedings of acquisition and having come to know of the same when possession was sought to be taken on 22.9.2015. The application moved is extracted herein under:
“From S.Devarasu S/o.Sambasivam No.37, Middle Street Arumparthapuram Puducherry – 605 110 To The Deputy Collector (Revenue) South, Villianur.
_______ Page 22 http://www.judis.nic.in W.A.No.632 of 2020 Sir Sub : Acquisition of land at Kurumbapetand Odiampet Revenue villages for formation of link road south of Puducherry – Villupuram railwayline bye-passing Arumparthapuram – Natesan Nagar Segment of NH-45A – Fixing quantum of Compensation under New Land Acquisition Act – Requested – Reg.
Ref: 1. Taken over possession Notice No.616/DCRS/LA/U2004/B1 Dated 22/9/2015 of the Dy. Collector (Rev) South, Villianur.
2. Order of the Hon'ble High Court of Madras in W.P.7070/2010 dated 14.4.2010.
3. Minutes of the Meeting held on 26.8.2016 under the Chairmanship of Hon'ble PWD Minister, Puducherry.
**** I humbly stated that I have purchased a portion of 0- 04-55 Ha. Of land in R.S.No.180/4B in Kurumbapet Revenue Village from Tvl. Pakkri and Soundrambal who had purchased the land fro the land owner Thiru.P.Kalidas S/o.Ponnusamy.
I humbly stated that the above said entire portion of land which was in my possession and enjoyment, acquired by the Govt. of Puducherry for formation of link road south of Puducherry-Villupuram railwayline bye- passing Arumparthapuram-Natesan Nagar Segment of NH-45A.
_______ Page 23 http://www.judis.nic.in W.A.No.632 of 2020 I humbly stated that Hon'ble High Court of Madras, under ref. 2nd cited, ordered the Sub Collector (Revenue) South to issue fresh notification of for acquisition of land, since the entire proceedings was lapsed on technical grounds, within a period of two weeks from the date of receipt of order copy and with a further direction to the petitioners to surrender the possession of land to the respondents so as to enable the complete the project which is of public importance and to proceed further.
I humbly stated that as one of the interested party of the land under acquisition I was also issued with a notice under Section 12 (2) of the Land Acquisition Act with a request to handing over possession of land on 22.9.2015 at 10.30 A.M. In order to obey the directions of the Hon'ble High Court of Madras, I myself present the spot on the abovesaid date and time and handed over the land to the Dy. Collector (Revenue) South which was in my possession and enjoyment with assurance of the Dy. Collector (Revenue) South, Villianur to refix the quantum of compensation under the New Land Acquisition Act.
I humbly stated that a meeting was held under the _______ Page 24 http://www.judis.nic.in W.A.No.632 of 2020 Chairmanship of the Hon'ble PWD Minister of Puducherry to re-fix the compensation amount in accordance with the category / classification, as the land under acquisition lie in a long stretch of distance with different classifications. During the meeting the following action points were taken in presence of the land owners:
1. To issue a fresh preliminary notification under Section 11A of the New Land Acquitision Act i.e. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, Resettlement Act, 2013, that the lands are needed for a public purpose.
2. With regard to quantum of compensation as the lands lie in a stretch distance of different categories / classifications, the compensation as to be calculated accordingly.
3. Finally taken in to account of all factors viz GLR value, market rate and solatium etc, it was decided to the compensation for the lands under acquisition. As such an amount of Rs.1800/- per sq. ft. was fixed as the rate of compensation to the land in R.S.No.180/3B in Kurumbapet Revenue Village.
In view of the above facts, I humbly request you to pass necessary orders:
_______ Page 25 http://www.judis.nic.in W.A.No.632 of 2020
1) To issue a fresh notification to acquire the lands which was taken possession for formation of by-
pass road Section 11A of the New land Acquisition Act i.e., The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, Resettlement Act, 2013, including my land in R.S.No.180/4B to an extent of 0-04-55 in Kurumbapet Revenue Village, as per the decision taken by the PWD Minister vide ref.3 cited, as I did'nt receive any compensation from the Land Acquisition Officer till date for acquisition of land, or
2) To refix the quantum of compensation @ Rs.1800/- per Sq. ft. in respect of my land in accordance with the GLR/market value and other monetary benefits as fixed for the land in R.S.No.180/3B which was similar in nature and same potential value and also adjacent to my land.
I enclose copy of documents in support of my claim for favourable consideration and necessary immediate action please.
Yours faithfully Place : Puducherry (Sd/- S.Devarasu) Date : 15.9.2016” _______ Page 26 http://www.judis.nic.in W.A.No.632 of 2020
21. The aforesaid application was rejected by the Deputy Collector on 3.10.2016 by the order which came to be impugned in the writ petition and is extracted herein under:
“GOVERNMENT OF PUDUCHERRY OFFICE OF THE DEPUTY COLLECTOR (REVENUE) SOUTH ***** No.616/DCRS/LA/U/04 Villianur, dt. 03.10.2016 To Thiru.S.Devarasu, S/o.Sambasivam, No.37, Middle Street, Arumparthapuram, Puducherry – 605 110.
Sir, Sub : DCRS – LA – Acquisition of lands at Kurumbapet and Odiampet Revenue Villages for formation of a link road south of Puducherry – Villupuram railway line bypassing Arumparthapuram – Natesan Nagar segment of NH-45A – Compensation under the new Land Acquisition Act – Reply furnished – Reg.
Ref : Your representation No. nil dated 15.09.2016.
**** _______ Page 27 http://www.judis.nic.in W.A.No.632 of 2020 I am to inform that as per the award passed by the Land Acquisition Officer vide reference 1st cited above, the compensation amount in respect of the land in R.S.No.180=4B to an extent of 0.04.55 Ha in Kurumbapet Revenue Village has been deposited in Civil Court Deposit under Section 31(2) of the LA Act and the case has been referred to the District Court, Puducherry under Section 30 of LA Act, 1894 to decide the rightful ownership of the land. The referred case has been numbered as LAOP No.33/2016 on the file Hon'ble III Additional District Judge, Puducherry. The case is posted for hearing on 01.10.2016. Hence, you are hereby informed to approach the concerned court by person or pleader to claim the compensation amount.
Further, the land has been taken possession by the Land Acquisition Officer and handed over to the requisition department i.e. National Highways Division, PWD. Hence your request to issue fresh notification and fix compensation under the new Land Acquisition Act, 2013 is not feasible at this stage.
Yours faithfully, Sd/- xxxx (N.UDAYAKUMAR) _______ Page 28 http://www.judis.nic.in W.A.No.632 of 2020 DEPUTY COLLECTOR (REV) SOUTH
-CUM-LAND ACQUISITION OFFICER”
22. It is in this background that the writ petition was entertained and after exchange of affidavits, the same has been allowed under the impugned judgment by the learned Single Judge.
23. The matter was heard by us on 31.8.2020 and the following order was passed:
“Heard Mrs.N.Mala, learned Additional Government Pleader (Puducherry) for the appellants and Mr.V.Raghavachari, learned counsel for the respondent petitioner.
2.From the papers that have been filed along with the typed set by the appellants, we find an application dated 15.09.2016 having been moved by the respondent petitioner, which came to be rejected on 03.10.2016 and that formed the basis of the challenge in the writ petitioner.
3.The question of the respondent petitioner having knowledge apart from issuance of notice of the acquisition proceedings is one of the issues which has _______ Page 29 http://www.judis.nic.in W.A.No.632 of 2020 to be examined in the matter.
4.The impugned judgment proceeds on the assumption as if no notice was served and therefore, the learned single Judge has proceeded to observe that in the wake of the fact that possession was handed over and a road has been constructed, it will be appropriate that a fair compensation is given to the respondent petitioner, for which directions have been issued. The impugned judgment, therefore, has been challenged by the appellants contending that such a course was not permissible in law and consequently, the directions issued by the learned single Judge to award compensation under the 2013 Act is not justified.
5.On the issues so raised, the matter may require a consideration, but it is informed by the learned counsel for the appellants that a contempt application has been filed by the respondent petitioner. In the wake of the matter having been taken up by us, Sri.Raghavachari prays that he may be permitted to file a consolidated typed set along with a list of dates and events in order to substantiate his claim and therefore, he prays for an adjournment.
6.List on 18.09.2020.
_______ Page 30 http://www.judis.nic.in W.A.No.632 of 2020
7.In the meantime, the learned single Judge is requested not to proceed with the contempt proceedings till the matter is finalised by this Court. As both the learned counsel for the parties agreed for physical hearing, list accordingly.”
24. Then again, on 18.9.2020, since the learned counsel for the respondent/petitioner preferred to file some documents pertaining to the proceedings, the matter was adjourned to 8.10.2020, and on that date, we passed the following order:
“Heard Mrs.N.Mala, learned Government Pleader, Puducherry, for the appellants and Mr.V.Raghavachari, learned counsel for the respondent.
2.On a conspectus of the arguments that had been advanced by the learned counsel for the parties, prima facie, it appears that the respondent petitioner came up with a case in the writ petition that he was, in effect, not opposing the acquisition proceedings, but was, on account of the lapses of the appellants for non-
payment of adequate compensation, praying for a payment to which he was entitled in law. The learned single Judge, therefore, rightly entertained the plea _______ Page 31 http://www.judis.nic.in W.A.No.632 of 2020 and according to the learned counsel for the respondent petitioner, the impugned judgment dated 26.02.2018, where a direction to grant adequate and effective right of hearing to the respondent petitioner for payment of compensation under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, has been rightly extended, may not be interfered with.
3.Learned Government Pleader (Puducherry) appearing for the appellants, however, contends that the aforesaid direction has been issued contrary to law inasmuch as with regard to the same set of proceedings, nine tenure holders had earlier approached this Court and according to the litigation that proceeded in respect thereof, it was clearly recorded that the benefits as claimed would be confined only to those nine petitioners with regard to whose land the proceedings will be treated to have been lapsed.
4.For this, learned counsel for the appellants has invited the attention of the Court to the judgment of the Division Bench dated 23.11.2017 in W.A.Nos.776 to 778 and 806 of 2016 and then to the judgment of the learned single Judge dated 28.01.2016 in _______ Page 32 http://www.judis.nic.in W.A.No.632 of 2020 W.P.No.7070 of 2010 and other connected petitions that had been affirmed by the Division Bench in W.A.No.279 of 2016 decided on 16.03.2016.
5.Learned counsel for the appellants has then urged that the claim of the respondent petitioner that the proceedings should be treated to have been lapsed in respect of the land that was claimed to be owned by the nine petitioners also would be barred by acquiescence and also by the own admission of the respondent petitioner that he does not propose to challenge the acquisition proceedings. She has further relied on two judgments of the Apex Court, one in the case of Abhey Ram vs. Union of India, (1997) 5 SCC 421, paragraphs 10 to 12 and then the law reiterated by the Apex Court in the case of The Chairman and Managing Director, T.N. Housing Board vs. S.Saraswathy, (2015) 8 SCC 723, where the same view has been taken in paragraphs 10 to 13 thereof.
6.On the strength of the ratio of the said decisions, it is urged that the same principle will apply on the issue of lapse as well and therefore, the claim that the acquisition had lapsed in respect of the nine persons who had litigated before this Court would stand confined only to those nine persons as observed in the _______ Page 33 http://www.judis.nic.in W.A.No.632 of 2020 said judgment and also in view of the principles laid down in the judgments aforesaid that would be applicable on the facts of the present case.
7.This has been refuted by Mr.Raghavachari, learned counsel for the respondent petitioner contending that in the same set of proceedings where the learned single Judge in the judgment dated 28.01.2016 had held that possession should be surrendered after holding that the proceedings had lapsed, the Division Bench upturned the said judgment on 16.03.2016 holding that this would be contrary to law and had therefore held the lapse to be absolute. He therefore submits that the said position of law would equally apply on the facts of the present case inasmuch as neither was there any notice nor was the award within the time prescribed and all the elements that were considered for treating the acquisition to have lapsed are equally applicable and available to the respondent petitioner. He submits that the decisions of the Apex Court relied on by the learned counsel for the appellants are on proceedings relating to quashing of Section 6 notification that stand on a different footing as against lapse contemplated under Section 11A of the Land Acquisition Act, 1894. He, therefore, submits that the legal position as advanced by the learned _______ Page 34 http://www.judis.nic.in W.A.No.632 of 2020 counsel for the appellants cannot take away the vested right of the respondent petitioner inasmuch as permitting this would amount to violating Article 300A of the Constitution of India as well as the provisions of the Land Acquisition Act itself. He, therefore, submits that he may be granted some more time to assist the Court in order to counter the submissions advanced by the learned counsel for the appellants.
8.Learned counsel for the respondent petitioner prays that the matter be taken up for physical hearing on 29.10.2020, to which the learned counsel for the appellants has no objection. List accordingly.”
25. After the matter was heard during the course of physical hearing, we proceeded to reserve judgment.
26.1. Learned counsel for the appellants has advanced her submissions contending that the writ petition was severely barred by laches, and the respondent/petitioner sat as a fence-sitter who could not be granted any relief for the same reasons for which the relief came to be denied to the other tenure holders who had filed their writ petitions in 2015 and 2016 that were dismissed on the _______ Page 35 http://www.judis.nic.in W.A.No.632 of 2020 ground of laches on 28.1.2016 and the writ appeal filed against the same also stood dismissed on 23.11.2017. She urges that the respondent/petitioner falls within the said category of petitioners, as he also preferred writ petition in the year 2016.
26.2. She then contends that the respondent/petitioner cannot, in any way, be presumed to have no knowledge of the proceedings, in as much as the notifications under Sections 4 and 6 of the 1894 Act were widely published, including in the gazette and in the locality. The respondent/petitioner did not take any steps to get his name mutated and the entire acquisition proceedings were well within the knowledge of the respondent/petitioner, who had feigned ignorance, for which there is no foundation. Thus, the plea of no notice having been served on him is also incorrect, and as a matter of fact, the notice under Section 12(2) of the 1894 Act was admittedly served on him.
26.3. She then urges that the learned Single Judge committed a manifest illegality in allowing the writ petition by applying the law _______ Page 36 http://www.judis.nic.in W.A.No.632 of 2020 under the proviso to Section 24 of the 2013 Act, and to substantiate her submissions she relies on the recent decision of the Apex Court of the Five Judges Bench in Indore Development Authority v. Manoharlal and others, 2020 SCC Online SC 316, where a reference made to the Apex Court came to be answered by clarifying the position of law relating to the award of compensation, the deposit, the applicability of the provisions of Section 24(1)(b) read with Section 24(2) of the 2013 Act. It is urged that applying the law as enunciated therein, particularly the ratio contained in paragraph 402 of the reported judgment, the view taken by the learned Single Judge under the impugned judgment is no longer sustainable in law.
26.4. She then contends that the respondent/petitioner himself has conceded to the acquisition proceedings and has only raised an issue of enhanced compensation, and as such the argument advanced for treating the acquisition to have lapsed under Section 11-A of the 1894 Act has no relevance in the present controversy.
_______ Page 37 http://www.judis.nic.in W.A.No.632 of 2020 26.5. It is then urged that the possession will be presumed to be with the State, in as much as there was no stay order in favour of the respondent/petitioner, and which stood clarified by the interim order passed on 21.9.2015 in the case of the nine other petitioners, wherein it has been categorically stated that the interim order was only in respect of those nine writ petitioners, hence no benefit thereof was available to the respondent/petitioner, and consequently possession was not with the respondent/petitioner, and in that view of the matter, any argument based on the strength thereof would be untenable, as the land vested in the State free from all encumbrances with effect from the declarations notified under the 1894 Act.
26.6. Coming to the impugned judgment, learned counsel submits that the learned Single Judge has completely overlooked the facts stated in the additional counter affidavit filed on behalf of the State on 5.2.2018, which categorically set up a plea that in similar circumstances the writ petitions of the other tenure holders _______ Page 38 http://www.judis.nic.in W.A.No.632 of 2020 had been dismissed and the writ appeals also were dismissed on 23.11.2017. This additional counter affidavit had been filed on 5.2.2018 and was on record, but the learned Single Judge completely omitted to consider the same and has not even referred to the said stand of the State, hence the impugned judgment is vitiated.
26.7. It is contended that neither the respondent/petitioner was entitled to the benefits of the 2013 Act, nor was he entitled to any indulgence under the extraordinary jurisdiction on account of delay, laches and the respondent/petitioner having allowed the grass to grow under his feet.
26.8. She further submits that the respondent/petitioner was a fence-sitter and in spite of having complete knowledge of the entire acquisition proceedings, which was a talk of the town, he set up an application for the purpose of litigating the matter further, that was rightly rejected by the authorities on 3.10.2016 finding the claim of the respondent/petitioner to be not feasible. She contends _______ Page 39 http://www.judis.nic.in W.A.No.632 of 2020 that the respondent/petitioner cannot take undue advantage of his own lapses to point out deficiencies in the proceedings culminating in the order dated 3.10.2016.
26.9. Learned counsel has relied on the following judgments to support her submissions:
(i) Delhi Airtech Services Private Limited and another v. State of Uttar Pradesh and another, (2011) 9 SCC 354;
(ii) Satendra Prasad Jain and others v. State of U.P. and others, (1993) 4 SCC 369; and
(iii) Laxmi Devi v. State of Bihar and others, (2015) 10 SCC 241;
(iv) Banda Development Authority, Banda v.
Motilal Agarwal and others, (2011) 5 SCC 394. 27.1. Mr.V.Raghavachari, learned counsel for the respondent/ petitioner, apart from reiterating the contentions that were raised before the learned Single Judge, has urged that it is established _______ Page 40 http://www.judis.nic.in W.A.No.632 of 2020 that the name of one Kalidas continued in the revenue records, against whom the proceedings of acquisition were concluded, whereas he had died long back and during his life time, he had transferred the land to the vendors of the respondent/petitioner. Not only this, the respondent/petitioner had acquired the land through a registered sale deed, and Sections 17 to 19 of the Puducherry Settlement Act, 1970 (Act No.28 of 1970), which are the statutory provisions governing mutation, carve out an exception in favour of those tenure holders who have acquired the property by the method of registration of a document, where the obligation to mutate is on the State. This was considered and held by a Division Bench of this Court in Ramesh v. Union of India and others, 2020 SCC Online Mad 2741. The authorities having failed to carry out mutation, which was their obligation, the respondent/petitioner cannot be deprived of his right that clearly violates not only the provisions of the 1894 Act and the 2013 Act, but also Article 300-A of the Constitution of India.
27.2. He then submits that it is more than evident, as _______ Page 41 http://www.judis.nic.in W.A.No.632 of 2020 recorded by the learned Single Judge, that the award was passed beyond two years from the date of publication of the declaration under Section 6 of the 1894 Act, and possession had not been taken, hence the authorities had failed to comply and execute the provisions of Section 17 of the 1894 Act. Admittedly, the possession was taken long after in the year 2015 and not only this, the award was passed in 2009. In the above conditions, the provisions of Section 11-A of the 1894 Act are clearly attracted.
27.3. It is contended by Mr.V.Raghavachari that even if the respondent/petitioner is not against the acquisition proceedings, yet the acquisition proceedings should be concluded only in accordance with law, and in such circumstances, even if this Court comes to the conclusion that it will not be appropriate to restore back possession keeping in view the purpose for which the land has been acquired, the respondent/petitioner is entitled to a fair compensation in terms of the 2013 Act, as has been extended to the nine petitioners of W.P.No.7070 of 2010.
_______ Page 42 http://www.judis.nic.in W.A.No.632 of 2020 27.4. He contends that the Five Judges Bench decision in Indore Development Authority v. Manoharlal and others (supra), does not in any way dilute the claim of the answering respondent/ petitioner, who has completely established that he has been deprived of his land unlawfully, without following the procedure prescribed in law, both under the 1894 Act and denial of fair compensation under the 2013 Act.
27.5. Mr.Raghavachari contends that the case of the respondent/petitioner is at par with the nine petitioners of W.P.No.7070 of 2010, and it is wrong to describe the respondent/ petitioner as a fence-sitter or being guilty of any laches. The respondent/petitioner had no notice of the proceedings and it was only in the year 2015 when the possession was sought to be forcibly taken that he represented the matter, which request came to be erroneously rejected without application of mind and without considering the relevant aspects by the order dated 3.10.2016. He, therefore, submits that viewed from any angle, all the acquisition proceedings were invalid, but in the given background, the _______ Page 43 http://www.judis.nic.in W.A.No.632 of 2020 respondent/petitioner is at least entitled to a fair compensation according the 2013 Act, as has been awarded now to the nine petitioners of W.P.No.7070 of 2010.
27.6. He submits that neither any lawful possession was taken from the respondent/petitioner, nor any lawful procedure to acquire the land was followed and to substantiate his submissions, he has relied on the following judgments:
i. Management of Oriental Mercantile Agency v.
Presiding Officer, (1973) 1 SCC 287;
ii. Ramesh v. Union of India and others, 2020 SCC Online Mad 2741;
iii. Vidya Devi v. State of Himachal Pradesh and others, (2020) 2 SCC 569;
iv. R.Rajashekar and others v. Trinity House Building Cooperative Society and others, (2016) 16 SCC 46;
v. Tukaram Kana Joshi and others v. Maharashtra Industrial Development Corporation and _______ Page 44 http://www.judis.nic.in W.A.No.632 of 2020 others, (2013) 1 SCC 353;
vi. Laxmi Devi v. State of Bihar and others, (2015) 10 SCC 241;
vii.Nareshbhai Bhagubhai and others v. Union of India and others, (2019) 15 SCC 1;
viii.State of Haryana and another v. Devander Sagar and others, (2016) 14 SCC 746;
ix. Union of India and others v. Shakuntala Gupta, (2002) 7 SCC 98;
x. D.B.Basnett v. Collector, East District, Gangtok, Sikkim and another, (2020) 4 SCC 572;
xi. Sanjay Das v. State of Orissa and others, Manu/OR/0487/2012;
xii. Sanjay Das v. State of Odhisha and others, 2014 SCC OnLine Ori 87;
xiii.J & K Housing Board v. Kunwar Sanjay Krishan Kaul, (2011) 10 SCC 714; and xiv.Delhi Airtech Services Private Limited and _______ Page 45 http://www.judis.nic.in W.A.No.632 of 2020 another v. State of Uttar Pradesh and another, (2011) 9 SCC 354.
28. Having considered the submissions and the authorities cited in support thereof, it is clear that the entire acquisition proceedings were carried out against one Kalidas, who admittedly had died long before the notification was issued under Section 4 of the 1894 Act. Not only this, the said Kalidas had already transferred the land legitimately to the vendors of the respondent/petitioner. The names of these vendors were not recorded in the revenue records. No effort appears to have been made by the authorities to find out the correct status of ownership of land when the proposal was prepared in the year 2006 for acquisition thereof. It is also evident that the respondent/petitioner through a registered sale deed had acquired the land one month prior to the notification under Section 4 of the 1894 Act. According to the provisions of the Puducherry Settlement Act, 1970 and the judgment cited by the learned counsel for the respondent/petitioner in the case of Ramesh v. Union of India and others (supra), once _______ Page 46 http://www.judis.nic.in W.A.No.632 of 2020 the land is transferred through a registered sale deed in the Union Territory of Puducherry, then such a registered document has to be recorded and the mutation of the purchaser has to be carried out by the authorities, the obligation whereof lies on the Collector as per the aforesaid provisions. It is the registering authority which is obliged to inform the details of the registered document for the mutation to be carried out by the authorities. Even otherwise, no enquiry about the status of ownership appears to have been made, nor any material has been filed along with counter affidavit or additional counter affidavit before the learned Single Judge to demonstrate that any effort had been made for ascertaining the correct status of ownership of land. The entire proceedings in a mechanical manner proceeded against a dead person Kalidas, whose name was indicated right from the notification under Section 4 of 1894 Act, up to the stage of the award. It was only after the interim order was modified in W.P.No.7070 of 2010 on 21.9.2015 that there appears to have been an exercise undertaken to take possession, including from the respondent/petitioner. There is, therefore, no material on record to establish that the respondent/ _______ Page 47 http://www.judis.nic.in W.A.No.632 of 2020 petitioner was ever put to notice about the acquisition proceedings by the appellants, which they were obliged to do keeping in view the provisions of the 1894 Act, as has been discussed in detail by us in the Division Bench judgment in Ravisam v. Government of Tamil Nadu, 2020 (5) MLJ 720. Thus, no effort was made to find out the correct status of ownership, or serve a notice on the existing tenure holder, who was the respondent/ petitioner. This absence of service of notice or effecting intimation so as to construe knowledge by the respondent/petitioner has not been established.
29. The stand taken in the counter affidavit and the additional counter affidavit is that the notifications were published widely and it was also a talk of the town. It is stated by the appellants that since it was an important project and was being implemented, the respondent/petitioner will be presumed to be having knowledge of such a big project.
30. The aforesaid presumption sought to be raised as against the respondent/petitioner has to be viewed in the light of the fact _______ Page 48 http://www.judis.nic.in W.A.No.632 of 2020 that the enquiry notice under Section 17(3A), notices under Section 9(3) and 10, and the award under Section 11 of the 1894 Act were all concluded in the name of one Kalidas. The notices under Section 9(3) and 10 of the 1894 Act are alleged to have been collected by one Maran, and it is not specified in the entire counter affidavit as to who he was to receive the notice on behalf of Kalidas. The award was definitely delivered after two years and eleven months from the date of declaration under Section 6 of the 1894 Act. The provisions of Section 11-A of the 1894 Act were, therefore, clearly attracted as held by the learned Single Judge in the impugned judgment. This was the same position as in the case of the nine writ petitioners of W.P.No.7070 of 2010, and which lapse was upheld by the Division Bench in W.A.No.279 of 2016 on 16.3.2016. The possession notice which was also in the name of Kalidas came to the knowledge of the respondent/petitioner for the first time on 22.9.2015, and the notice under Section 12(2) of the said date was issued without serving any copy of the award on the respondent/petitioner. The actual possession was taken on 28.9.2015. Neither the full compensation, nor 80% of the compensation had been tendered to the _______ Page 49 http://www.judis.nic.in W.A.No.632 of 2020 respondent/petitioner. Even though the amount of compensation had been directed to be deposited way back on 12.12.2008 after enquiry of the award was over, the deposit of compensation in Court vide challan was made on 14.11.2015, as is evident from the triplicate receipt of the challan brought on record through the typed set of papers. The reference has been made under Section 30 of the 1894 Act by the Collector on 18.11.2015.
31. On the other hand, if the proceedings are to be treated as surviving for enhancement of compensation, then even assuming that the respondent/petitioner had a right to move an application for enhancement as per Section 18 of the 1894 Act, he could have done so within six months of the date of knowledge. The respondent/petitioner admits having knowledge of the proceedings on 22.9.2015 without a copy of the award, and for the first time he moves an application on 15.9.2016, which is almost after an year of the date of knowledge. It is however to be noted that from the impugned order dated 3.10.2016, which is a reply to the respondent/petitioner's representation, that the respondent/ _______ Page 50 http://www.judis.nic.in W.A.No.632 of 2020 petitioner had been informed of the proceedings under Section 30 of the 1894 Act to have been initiated on 18.11.2015 by way of reference, and which was pending before the learned Third Additional District Judge, Puducherry. Thus, the proceedings under Section 30 of the 1894 Act had not yet culminated. It is here that the argument of Mr.Raghavachari has to be taken notice of to the effect that the right of the respondent/petitioner to move an application for enhancement under Section 18 of the 1894 Act should be counted from the date of decision and disposal of the proceedings under Section 30 of the 1894 Act, as held by the Apex Court in the case of Madan and another v. State of Maharashtra, (2014) 2 SCC 720.
32. In this regard, we find force in the submission of the learned counsel for the appellants that no steps were taken by the respondent/petitioner within six months from the date when he claims to have had knowledge of the award on 22.9.2015. This aspect of the matter has not been examined by the learned Single Judge at all.
_______ Page 51 http://www.judis.nic.in W.A.No.632 of 2020
33. The respondent/petitioner in his petition before the learned Single Judge has categorically in paragraph (6) stated that he is not against acquisition proceedings initiated for the benefit of public at large. It is thus clear that the respondent/petitioner himself now cannot challenge the proceedings of acquisition even if he was not served with a notice about the acquisition proceedings, which is established on record. It is correct that service of notice would be a mandatory requirement as has been held by us in the Division Bench judgment in the case of Ravisam v. Government of Tamil Nadu (supra), but the aforesaid question may have to be further examined in view of the specific stand taken by the respondent/petitioner to the aforesaid effect. This aspect also has not been considered by the learned Single Judge in the impugned judgment.
34. The question of the proceedings having lapsed under Section 11-A of the 1894 Act therefore cannot arise, as the respondent/petitioner himself has pleaded for what can be termed _______ Page 52 http://www.judis.nic.in W.A.No.632 of 2020 as a partial lapse of the impact of the proceedings in order to enable him to seek higher compensation under the 2013 Act. It is here that we have to clarify that in view of the law declared by the Five Judges Constitution Bench in the case of Indore Development Authority v. Manoharlal and others (supra), in paragraph (402), the question of reopening of the proceedings, as has been directed by the learned Single Judge may have to be examined in the light of paragraph (402) of the judgment of the Apex Court extracted herein under:
“402. 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 _______ Page 53 http://www.judis.nic.in W.A.No.632 of 2020 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. 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 _______ Page 54 http://www.judis.nic.in W.A.No.632 of 2020 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.
_______ Page 55 http://www.judis.nic.in W.A.No.632 of 2020
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).
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 _______ Page 56 http://www.judis.nic.in W.A.No.632 of 2020 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.”
35. Learned counsel for the appellants has further advanced a submission that the impact of the interim order in the other cases cannot enure to the benefit of the respondent/petitioner. On the facts of the present case, we find this argument on behalf of the appellants to be justified, in as much as the clarification and the vacation of the interim order modified on 21.9.2015, as extracted herein above, makes it amply clear that the benefit of the interim order was nowhere intended in favour of any other petitioner except the nine of them in W.P.No.7070 of 2010. The affirmation of the judgment in favour of the nine writ petitioners and the allowing of their appeal setting aside the direction for surrendering possession _______ Page 57 http://www.judis.nic.in W.A.No.632 of 2020 would, therefore, be confined to only those nine petitioners and not any other tenure holder. This is further fortified by the fact that such of the writ petitions which were filed in the years 2015 and 2016 came to be dismissed by the learned Single Judge under the same judgment, and which finding came to be affirmed by the Division Bench in the writ appeals that were dismissed on 23.11.2017. Thus, whether the respondent/petitioner's case would squarely fall within the said category of petitioners who had been denied relief on the ground of laches, will have to be examined. This vital pleading which was on record through the additional counter affidavit of the appellants was totally omitted to be considered and its impact was overlooked by the learned Single Judge. The impugned judgment, therefore, stands vitiated on all the above counts.
36. There are however some pioneering arguments advanced which deserve to be noticed in view of the submissions that have been raised, as it invokes some discussion on legal vocabulary. The appellants have described that the notice of acquisition should be _______ Page 58 http://www.judis.nic.in W.A.No.632 of 2020 presumed against the respondent/petitioner and the affidavit in support of such a submission recites that it was “a talk of the town”. The hyphenated phrase “town-talk” means a subject being discussed all over the town. The phraseology “talk of the town” is an idiom that denotes a widespread topic which causes a sensation. In our considered opinion, when there is a statutory provision for service of notice, then such a stand on the basis of the aforesaid idiom cannot be a substitute of service of notice for the purpose of the 1894 Act. This submission on behalf of the appellants on the legal plane therefore is untenable and service of notice has to be in the manner provided, and as held by us in the case of Ravisam v. Government of Tamil Nadu (supra). Thus, a talk of the town or a town-talk is no substitute for service of notice.
37. Another argument that has been advanced on the strength of the judgment of the Division Bench dated 23.11.2017, referred to above, is that the respondent/petitioner was a fence sitter. “To sit on the fence” is an idiom which means to refrain from committing oneself to either side in a discussion, in politics, or a _______ Page 59 http://www.judis.nic.in W.A.No.632 of 2020 dispute, etc. If it is taken to be a wise step, then it amounts to waiting prudently before taking a side. It can also be a neutrality in action, an uncertainty and a state of indecisiveness in opinion. As an unwise step, it would be a timid approach and one may have to face the penalty if one is standing on, or sitting on, or upon the fence. Thus, this is a conscious act of waiting and not taking sides in the course of events. This, however, presumes knowledge of the events and then only can a person be described to be indecisive or neutral or deliberately waiting prudently before taking a side. The hesitation to participate is only dependent on knowledge and not otherwise. As indicated above, the respondent/petitioner had not been served with any notice, not could have been there a presumption of knowledge. Thus, in the context as explained above, the respondent/petitioner may not fall within the exact definition of a “fence-sitter” applying the aforesaid logic. Before labelling a person as a fence-sitter, it should be established that the person concerned either had knowledge or will be presumed to have knowledge as per law so as to attribute any burden in this regard. _______ Page 60 http://www.judis.nic.in W.A.No.632 of 2020
38. However, there is yet another argument and phraseology used by the appellants in their counter affidavit which deserves notice. It has been urged on behalf of the appellants that the respondent/petitioner “allowed the grass to grow under his feet”. This is yet another phrase which denotes that a person takes a long time to perform his own task. It is just the opposite of moving or acting briskly, or making most of one's time. This again would be dependent upon as to whether the person could have acted, as in the present case the respondent/petitioner could have undertaken any steps had he any knowledge about the acquisition proceedings. From the facts that have been unravelled, it is true that there is no valid notice having been served, as Kalidas, the recorded tenure holder, himself had died long back before the acquisition proceedings started and, thus, the acquisition proceedings moved with all notices being despatched in the name of a dead person and without evidence of service of notice on the respondent/petitioner, whose ownership has not been disputed so far, and rather is stated to be subject matter of proceedings under Section 30 of the 1894 Act. In this background, the laches cannot be attributed squarely to _______ Page 61 http://www.judis.nic.in W.A.No.632 of 2020 the respondent/petitioner to the extent as pleaded by the appellants. Nonetheless, this entire exercise may not have been necessary as the respondent/petitioner himself had pleaded that he was not against the acquisition of the land.
39. In the above background, the only question therefore remained was about the enhancement of compensation. The question, therefore, as to whether the respondent/petitioner would be entitled to any such relief or not now boils down to his right to make a request for such enhanced compensation.
40. On the facts of the present case, the communication dated 3.10.2016, which was under challenge before the learned Single Judge, on the one hand indicates the pendency of the proceedings under Section 30 of the 1894 Act, and on the other hand states that to consider enhancement would not be feasible on the ground that possession has already been taken over and, therefore, the request is declined.
_______ Page 62 http://www.judis.nic.in W.A.No.632 of 2020
41. The order dated 3.10.2016 does not examine as to whether the respondent/petitioner was legally entitled to move the application even presuming that proceedings were being continued under the 1894 Act in terms of Section 30 thereof. However, we have already indicated above that if the possession was taken on 22.9.2015, which is the date of knowledge of the proceedings of acquisition, then in that event, even if the copy of the award was not served on the respondent/petitioner, he could have moved the application within six months, assuming for the sake of argument that Section 18 of the 1894 Act was applicable. The respondent/ petitioner, admittedly, moved the application on 15.9.2016, which was long after the period of six months. Consequently, the conclusion drawn by the Deputy Collector in the order dated 3.10.2016 may have to be examined accordingly.
42. In the background aforesaid and the facts as narrated, as well as the legal position that emerges, the entitlement of the respondent/petitioner under the 2013 Act deserves a re-look. The question of a partial lapse on the facts of the present case has to be _______ Page 63 http://www.judis.nic.in W.A.No.632 of 2020 redetermined in the light of the observations made herein above. The impugned judgment therefore cannot be sustained.
In the result, the appeal is allowed and the impugned judgment is set aside. The matter is remitted to the learned Single Judge to decide the matter again accordingly. No costs. Consequently, C.M.P.No.8935 of 2020 is closed.
(A.P.S., CJ.) (S.K.R., J.)
14.12.2020
Index : Yes
sasi
_______
Page 64
http://www.judis.nic.in
W.A.No.632 of 2020
THE HON'BLE CHIEF JUSTICE
AND
SENTHILKUMAR RAMAMOORTHY, J.
(sasi)
Pre-delivery judgment in
W.A.No.632 of 2020
14.12.2020
_______
Page 65
http://www.judis.nic.in