Madras High Court
Nallammal vs State Of Tamilnadu on 22 December, 2011
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.12.2011 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Appeals No.875 and 876 of 2009, with M.P.No.1 of 2009 in W.A.No.875 of 2009 and M.P.No.1 of 2009 in W.A.No.876 of 2009 W.A.No.875 of 2009: 1.Nallammal 2.Periasamy ... Appellants Vs. 1.State of Tamilnadu, rep.by its Secretary, Housing and Urban Development Department, Fort St.George, Chennai-600009. 2.The Special Tahsildar, Salem Neighbourhood scheme, Salem. 3.Tamilnadu Housing Board, rep.by its Chairman, Salem Housing Unit, Iyyanthiur Maligai, Salem-8 ... Respondents W.A.No.876 of 2009: 1. S.Ramasamy 2. S.Natarajan 3. R.Pavayee 4. R.Periasamy 5. B.Selvi 6. R.Rajendran 7. Jayalakshmi 8. S.Raja 9. S.Selvam 10.S.Kumar 11.R.Poornam 12.N.Sekar 13.N.Suresh 14.Kamalam 15.P.Sudha 16.P.Maheswari ... Appellants Vs. 1.Government of Tamilnadu, rep.by its Secretary, Housing and Urban Development Department, Fort St.George, Chennai-600009. 2.Tamilnadu Housing Board, rep.by its Chairman & Managing Director, Chennai-600034. 3.The Executive Engineer & Administrative Officer, Tamilnadu Housing Board, Salem Housing Unit, Salem. 4.The Land Acquisition Officer & Special Tahsildar, Namakkal Neighbourhood Scheme, Namakkal. ... Respondents * * * Writ Appeal preferred under clause 15 of the Letters Patent as against the common order dated 9.6.2009 respectively made in W.P.Nos.4096 of 2008 and 30186 of 2007. * * * For appellants in : Mr.Vijayanarayanan, both the W.As. : Senior Counsel for Mr.C.Jagadish For R.1 & R.2 in WA.875/2009 & for R.1 & R4 in : Mr.V.Viswanathan, AGP WA.876/2009 For R.3 in : Mr.P.S.Raman, A.G. for W.A.875/2009 & for: Mr.D.Veerasekaran R.2 & R.3 in : W.A.876/2009 * * * COMMON JUDGMENT
ELIPE DHARMA RAO, J.
The legal question that is involved in both these writ appeals is 'whether non-payment/belated payment (beyond the reasonable time) of the compensation amount by the Government, being the acquisition body, to the land owners, would nullify the entire land acquisition proceedings initiated?'
2. The lands measuring an extent of 8.65 acres in S.No.19/2 in Vagurampatti village of Namakkal Taluk (in the erstwhile Salem District), belonging to the appellants in W.A.No.876 of 2009 were sought to be acquired by the Government for construction of houses under the Salem Neighbourhood Scheme and a Notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was published in G.O.Ms.No.976, Housing and Urban Development, dated 12.11.1981 and it was published in the Government Gazette on 16.12.1981. Declaration under Section 6 was made on 31.3.1984. These land acquisition proceedings were challenged by the land owners by filing W.P.No.8888 of 1984 before this Court, which was allowed by a learned single Judge on 19.7.1994. But, on appeal by the Government, the said order of the learned single Judge was set aside by a Division Bench of this Court in W.A.No.999 of 1995, dated 22.1.2001. In the meantime, even during the pendency of the writ petition, an award was passed on 22.6.1989 by the Special Tahsildar, determining the compensation amount payable as Rs.4,95,719.85. But, it is an admitted fact that even though the writ appeal filed by the Government was allowed on 22.1.2001 itself, no further steps were taken by the respondents and the compensation amount was not deposited before the Sub Court to which reference will lie under Section 18 of the Act. Therefore, contending that such lapse committed on the part of the Government would nullify the acquisition proceedings, the land owners have come forward to file W.P.No.30186 of 2007 before this Court.
3. A counter affidavit has been filed by the respondents before the learned single Judge in W.P.No.30186 of 2007. In Para No.4, the respondents have averred as follows:
"4. I further submit that since the land owners failed to produce any documentary evidence and to give any deposition regarding the title of the lands, the entire compensation of Rs.4,95,719.85 was ordered to be remitted in Sub Court, Namakkal under Section 30 and 31(2) of the Land Acquisition Act, subject to the disposal of Writ Petition No.8888/84 pending in the High Court, Chjennai. The post of Special Tahsildar (LA), Neighbourhood Scheme, Namakkal was also disbanded on 28.2.1989 and the file was handed over to Revenue Divisional Officer, Namakkal. The Executive Engineer & Administrative Officer, Tamil Nadu Housing Board, Salem has sent the draft for award amount of Rs.4,95,719.85 on 30.9.1989 to the Revenue Divisional Officer, Namakkal and the Revenue Divisional Officer, Namakkal in turn deposited the award amount in SBI, Namakkal under work deposit on 11.10.1989. A perusal of the file reveals that the file was dealt by Revenue Divisional Officer, Namakkal till 3/90 and the file was handed over to Special Tahsildar (LA), Neighbourhood Scheme, Salem in 4/90. Due to the disbandment of the post of Special Tahsildar (LA), Neighbourhood Scheme, Namakkal on 28.2.1989 and due to the transfer of file to Revenue Divisional Officer, Namakkal and then to Special Tahsildar (LA), Neighbourhood Scheme, Salem somehow the award amount of Rs.4,95,719.85 deposited in SBI, Namakkal on 11.10.1989 was omitted to be deposited in Sub Court, Namakkal under Section 30 and 31(2) of Land Acquisition Act. This fact came to light only when one Tmt.Marudhayee of Kondichettypatty village claimed the compensation amount to the Special Tahsildar (LA), Neighbourhood Scheme, Salem on 11.9.2000. The District Revenue Officer, Namakkal was addressed by then Special Tahsildar (LA), Neighbourhood Scheme, Salem on 10.10.2000 to instruct the Revenue Divisional Officer, Namakkal to withdraw the award amount deposited in SBI, Namakkal on 11.10.1989 and sent to Special Tahsildar (LA), Neighbourhood Scheme, Salem for depositing the same in Sub Court, Namakkal."
4. It has further been stated that the Tamil Nadu Housing Board has again given a cheque for the award amount of Rs.4,95,720/= on 7.8.2007 and the same was deposited in the Sub Court, Namakkal under Section 30 and 31(2) of the Act on 8.8.2007 in LAOP.No.8 of 2007.
5. Therefore, from the very contents of the counter in this case, it is clear that though the award was passed on 22.6.1989 by the Special Tahsildar, determining the compensation amount payable as Rs.4,95,719.85, the award amount was deposited in the Sub Court only on 7.8.2007, i.e. after 19 years of the award.
6. In the case of the appellants in W.A.No.875 of 2009, an extent of 3.16 acres comprised in S.Nos.58/4 and 61/6 of Kondichettipatti village of Namakkal taluk, in the erstwhile Salem District, were sought to be acquired by the Government for construction of houses under the Salem Neighbourhood Scheme. The Writ Petition in W.P.No.8477 of 1986 filed by the petitioners, challenging the Section 4(1) Notification, dated 17.4.1985, was allowed by a learned single Judge on 5.12.1996. But, on appeal by the Government, the order of the learned single Judge was set aside by a Division Bench of this Court in W.A.No.688 of 1999. Aggrieved, the appellants have filed SLP.No.2246 of 2002 before the Honourable Apex Court and the same was disposed of by the order dated 1.4.2005, observing as follows:
"... The grounds on which the petition was ultimately dismissed by the Division Bench are grounds which are not challenged as being incorrect by the petitioner before us. However, the petitioner had raised two further grounds before the High Court which have not been considered by the High Court. According to the petitioner he had argued that the petitioner being a repatriate from Sri Lanka, his lands could not be the subject matter of acquisition pursuant to the Srima Sashri Pact. His second submission was that in several cases pertaining to neighbouring lands, the land had been released from acquisition. The writ petition had been allowed by the learned single Judge. The appeal preferred by the respondent authorities had initially been allowed exparte. The petitioner made an application for recall. The application for recall was disposed of by upholding the earlier judgment. The court recorded that no other point apart from the issue decided had been argued by the petitioner. If that is an incorrect recording it is for the petitioner to raise the grievance before the High Court and not file a special leave petition.
The special leave petition is disposed of accordingly."
7. Subsequent thereto, the appellants have filed Review Application No.79 of 2006 and the same was also dismissed, by the order dated 10.10.2006. But, in the said order, it has been observed by the Honourable First Bench of this Court that 'It is always open to the petitioner to avail any such remedy including remedy under Section 48(B) of the Land Acquisition Act, if he is so advised.'
8. Thereupon, the appellants have initiated the present writ proceedings by filing W.P.No.4096 of 2008 (pertaining to W.A.No.875 of 2009) contending that after all these years, they came to know that though an award was passed on 28.2.1989, the compensation amount was neither paid to them nor was deposited in the Civil Court, as required under Section 31(2) of the Act and therefore, the acquisition proceedings are liable to be quashed. No counter affidavit has been filed in this matter either before the learned single Judge or before us. But, from the arguments advanced before the learned single Judge and also before us, there is no dispute with regard to the fact that the award amount has neither been paid to the land owners nor deposited in the concerned Sub Court.
9. Before the learned single Judge, the arguments advanced on the part of the land owners is that non-payment/belated payment of award amount would nullify the acquisition proceedings. Though a judgment of the Honourable Apex Court in A.P.HOUSING BOARD vs. MOHD.SADATULLAH AND OTHERS [(2007) 6 SCC 566], was relied on by the land owners, in support of their contention that non-payment of the compensation amount within a reasonable time, would render the acquisition proceedings lapsed, the learned single Judge has disagreed with their contentions, by distinguishing the said judgment of the Honourable Apex Court, and ultimately dismissed the writ petitions filed by the land owners. It is in this backdrop that both these writ appeals have come to be filed.
10. As stated supra, the question to be decided in these appeals is whether non-payment/belated payment of the compensation, beyond the reasonable time, would nullify the acquisition proceedings.
11. The learned single Judge has held that if there is delay in payment of the compensation amount, then, the landowners can claim interest as provided for under Section 34 of the Act. The learned single Judge further held that the only provision which makes the land acquisition proceedings to lapse is Section 11A of the Act and that too when the award is not passed within the time stipulated therein. On such findings, the learned single Judge has rejected the writ petitions filed by the land owners.
12. This question involved in these matters is no more res integra, in view of the authentic pronunciation by the Honourable Apex Court in A.P.HOUSING BOARD vs. MOHD.SADATULLAH AND OTHERS [(2007) 6 SCC 566] (which has been distinguished by the learned single Judge) and also in MAHESH CHANDRA BANERJI vs. UTTAR PRADESH AVAS EVAM VIKAS PARISHAD AND OTHERS [(2010) 7 SCC 439].
13. In Mahesh Chandra Banerji's case (supra), the Honourable Apex Court has held that 'whatever be the dispute, a citizen cannot be deprived of his property except in accordance with the procedure established by law. The extent of the lands so acquired will have to be established and compensation in respect thereof has to be paid'. Holding so, the Honourable Apex Court has nullified the acquisition proceedings, as improper, since the lands were acquired without paying any compensation amount. This is even the spirit of the judgment of the Honourable Apex Court in A.P.HOUSING BOARD vs. MOHD.SADATULLAH AND OTHERS [(2007) 6 SCC 566] (which has been distinguished by the learned single Judge). Since in the cases on hand also, there is no dispute with regard to the fact that the compensation amount has been deposited after an unreasonably belated period of 19 years (with regard to W.A.No.876 of 2009) and no compensation amount has been paid so far (with regard to W.A.No.875 of 2009), the propositions laid down by the Honourable Apex Court in the above two judgments would squarely apply to these cases. At no stretch of imagination could the delay of 19 years be called as a deposit within reasonable time. We are also not satisfied with the callous reason offered by the respondents for such long delay. To explain, as could be seen from the counter affidavit, they have stated that 'somehow the award amount of Rs.4,95,719.85 deposited in SBI, Namakkal on 11.10.1989 was omitted to be deposited in Sub Court, Namakkal under Section 30 and 31(2) of Land Acquisition Act'. Therefore, we are unable to accept the decision arrived at by the learned single Judge, being contrary to the propositions laid down by the Honourable Apex Court. Accordingly, following the dictum laid down by the Honourable Apex Court in the above judgments and without going into other aspects of the case, both these writ appeals deserve to be allowed, setting aside the order of the learned single Judge.
In the result, both these writ appeals are allowed. No costs. Consequently, connected miscellaneous petitions are closed.
Rao To
1.Government of Tamilnadu, rep.by its Secretary, Housing and Urban Development Department, Fort St.George, Chennai-600009.
2.Tamilnadu Housing Board, rep.by its Chairman & Managing Director, Chennai-600034.
3.The Executive Engineer & Administrative Officer, Tamilnadu Housing Board, Salem Housing Unit, Salem.
4.The Land Acquisition Officer & Special Tahsildar, Namakkal Neighbourhood Scheme, Namakkal