Madras High Court
Ravi Sam vs Government Of Tamilnadu on 28 October, 2021
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
WP.No.3640 of 2001
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 06.10.2021
Pronounced on : 28.10.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
WP.No.3640 of 2001 and
WMP.No.5047 of 2001
Ravi Sam ..Petitioner
Vs.
1.Government of Tamilnadu,
Rep. by Secretary to Government,
Housing and Urban Development,
Chennai – 600 009
2.Special Tahsildar (Land Acquisition),
Housing Scheme No.3,
Coimbatore
3.Executive Engineer and
Administrative Officer,
Coimbatore Housing Unit,
TNHB, Coimbatore ..Respondents
PRAYER:
The Writ Petition is filed under Article 226 of the Constitution
of India to issue a writ of certiorari calling for the records of the
first respondent pertaining to the notification issued under Section
4 (1) of the Act, 1894 notified in the gazatte on 20.03.1991 and
the declaration made under Section 6 of Act, 1894 notified in the
Page 1 of 40
https://www.mhc.tn.gov.in/judis
WP.No.3640 of 2001
Gazatte on 28.05.1992 and the award proceedings in Award
No.2/94 dated 23.05.1994 of the second respondent in respect of
the lands measuring an extent of acre 3.03 cents comprised in
SF.No.411/1 and 411/2 in Vilankurichi Village, Coimbatore North
and quash the same.
(prayer amended vide court order dated 06.10.2021 made in
WMP.No.12338 of 2020 in WP.No.3640 of 2001)
For Petitioner : Mr.AR.L.Sundaresan,
Senior Counsel
for Mr.G.Sankaran
For Respondents
For R1 & 2 : Mr.M.R.Gokul Krishnan,
Government Advocate
For R3 : Dr.R.Gouri,
Standing Counsel
ORDER
The writ petition is filed to issue a writ of certiorari calling for the records of the first respondent pertaining to the notification issued under Section 4 (1) of the Act, 1894 notified in the gazatte on 20.03.1991 and the declaration made under Section 6 of Act, 1894 notified in the Gazatte on 28.05.1992 and the award proceedings in Award No.2/94 dated 23.05.1994 of the second respondent in respect of the lands measuring an Page 2 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 extent of acre 3.03 cents comprised in SF.No.411/1 and 411/2 in Vilankurichi Village, Coimbatore North and quash the same.
2. The case of the petitioner is that his grandfather late V.Gopal Naidu owned property to an extent of 9.10 acres with other properties comprised in Vilankurichi village and other villages, Coimbatore District. The said Gopal Naidu along with his wife Chinnammal, his sons i.e. Purushothaman Naidu and G.Narayanasamy Naidu @ G.N.Sam who is the father of the petitioner herein and Krishna Naidu entered into partition deed dated 30.03.1955 registered vide document No.1272 of 1955. In the partition deed, the subject property was shown as schedule 'E' and life interest was given to the petitioner's grand mother and after her lifetime it devolved upon three sons into equal proportion. His grandfather died on 22.06.1964 and grandmother died on 03.02.1972. Thus, their three sons succeeded the subject property. Thereafter by the partition deed dated 15.05.1991 registered vide document No.2861 of 1991, the petitioner was allotted to an extent of 2.89 acres in SF.No.411 along with 14 cents of land set apart for the purpose of road. Thus, he was allotted to an extent of Page 3 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 3 acres and 3 cents in SF.No.411. The total extent of the land in SF.No.411 is 9.10 acres. It was divided equally to his father and his two brothers as per the partition deed. Originally the total extent of the land stood in the name of his grandfather V.Gopal Niadu as per the Resurvey and Resettlement Register. Thereafter it is entered in the name of Krishna Naidu and the petitioner's father Narayanasamy Naidu and the said property stood in the their name till the initiation of the acquisition proceedings. It was never sub-divided at any point of time. While being so, the respondents initiated acquisition proceedings under the Land Acquisition act, 1894 to build shelters to the shelterless people and the public as proposed to acquire to an extent of 2161.28 acres in Vilankurichi under Ganapathy Neighbourhood Scheme Phase-II. The land comprised in SF.No.411 to an extent of 10.15.5 hectares in Vilankurichi, Coimbatore District covered in Block No.2 was acquired for the formation of comprehensive Housing Scheme in Ganapathy Neighbourhood Scheme Phase-II, Vilankurichi Village. The notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter called as 'the Act') was approved by the Government in GO.Ms.No.306 Housing and Urban Development Page 4 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 Department dated 05.03.1991 and published in the Government Gazattee dated 20.03.1991. The substance of the notification was published in two tamil dailies i.e. 'Theekadir' on 01.05.1991 and 'Pirpagal' on 02.05.1991 and also in the public locality on 30.05.1991.
2.1 The further case of the petitioner is that enquiry under Section 5A of the Act was conducted on 07.08.1991 and the objections raised by the land owners were communicated to the requisition body. The objections are found in general in nature and the objections raised by the land owners were over ruled. Draft declaration under Section 6 of the Act was approved by the Government in GO.No.269 Housing and Urban Development Department dated 26.05.1992. The draft declaration was published in the Tamilnadu Government Gazattee on 28.05.1992. The substance of the declaration was also published in 'Makkal Kural' and 'Dhinathoodhu' on 29.05.1992 and in the locality on 29.05.1992. The draft declaration under Section (7) of the Act was approved by the Government in letter dated 30.09.1992. Thereafter, notices under Sections 9(3) and 10 were served on the land owners and interested persons. They were Page 5 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 published and necessary certificates were obtained and the award enquiry as contemplated under Section 11 of the Act was conducted on 25.04.1994. Award was passed in award No.2 of 1994 on 23.05.1994. The subject land in the present writ petition was handed over by the Land Acquisition Officer on 09.12.1994. Out of total extent of 25.09 acres comprised in the award, a scheme proposal under Area Development Scheme has been executed at a cost of Rs.1.36 crores by the Tamilnadu Housing Board to an extent of 21.01 acres.
3.1 The learned Senior Counsel, Mr.AR.L.Sundaresan appearing for the petitioner submitted that the subject land comprised in SF.No.411 to an extent of 9.10 acres are described under the 4(1) notification and it was issued in the name of the petitioner's father's brother Krishna Naidu and P.S.G Ganga Naidu and Sons Trust admeasuring 1.65.0 hectares. They are not registered owners of the property and they do not have any ownership, right or interest over the property. The property comprised in SF.No.411/2 admeasuring 2.03.5 hectares is notified in the name of the petitioner's father i.e. Narayanasamy along with Raju Naidu and Balakrishnan. Thus, Page 6 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 the total extent of 9.10 acres comprised in SF.No.411 was sub divided at the time of issuance of notification under Section 4(1) of the Act. Accordingly, in the same manner, Section 6 declaration and the award proceedings issued in the name of the petitioner's father and his brother's name. The petitioner and his family members are continued to be owners as per the documents, revenue records and notifications and in fact, the said P.S.G Ganga Naidu Sons and Trust, Balakrishnan, Raju Naidu never challenged the acquisition proceedings in respect of the subject property. In the Resurvey and Resettlement Register, the petitioner's grandfather P.Gopal Naicker is entered with respect to the land comprised in SF.No.411 to an extent of 9.10 ares at Vilankurichi. For the fasli year 1398 to fasli year 1401 relating to the period during which the acquisition proceedings were initiated, the entries relating to ownership and occupation, the petitioner's father and his brother's name are shown. Other revenue documents such as adangal, chitta produced and clearly show that there is cultivation by them.
3.2 He further submitted that in the writ appeal, the petitioner raised Page 7 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 specific ground that the entire proceedings including the land acquisition proceedings, the delivery of award and other consequential actions were undertaken without notice to the petitioner. The entire proceedings were concluded in the name of his father. Whereas he died way back in the year 1961. Therefore, any proceedings carried out against a dead person are a nullity.
3.3 He further submitted that the second respondent herein filed counter and the petitioner also filed rejoinder to the counter affidavit filed by the second respondent. On receipt of the rejoinder, the third respondent herein approached the Tahsildar, Coimbatore North Taluk and got removed the petitioner's father's name i.e. Narayanasamy and his brother Krishna Naidu as well as the names of the purchasers in the revenue records and got mutated in the name of the Housing Board vide proceedings dated 19.06.2020. It was done unilaterally without any notice to the persons in whose names, entries stood on the date of mutation. Though the second respondent admitted the ownership of the petitioner and his father in the counter affidavit, the second respondent filed Page 8 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 additional counter affidavit stating that his father is not the owner of the property as well as the notified person and it belongs to one, Narayanasamy S/o Subba Naidu S/o. Appaye Naidu. Without even verifying the documents, without any application of mind, in order to please the Housing Board, has gone to the extent of doubting the petitioner's father's identity as well as the ownership of the property in order to create deliberate cloud over the petitioner's relationship with his father as well as his property. However, no records were produced to show that the said Narayanasamy S/o.Subba Naidu is having any title over the property comprised in SF.No.411/2. After three decades from the land acquisition proceedings, the respondents are trying to create records in the name of the said Narayanasamy S/o Subba Naidu. That apart, in the same counter affidavit clearly admitted that the said Krishna Naidu was the brother of the petitioner's father who is also notified person insofar as the land comprised in SF.No.411/1 i.e. part of SF.No.411. He also pointed out some manipulation in the documents produced by the second respondent.
Page 9 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 3.4 He further submitted that though the documents produced by the second respondent before the Hon'ble Division Bench do not contain the name of Narayanasamy S/o Subba Naidu, whereas the documents relied upon by the second respondent herein do not have any authenticity. Therefore, the second respondent manipulated records to show Narayanasamy Naidu S/o. Subba Naidu is the registered owner of the subject property. The documents produced by the petitioner clearly shows that the petitioner's father was the owner of the subject property along with his brother Krishna Naidu. Admittedly, the said Narayanasamy S/o.Subba Naidu is neither the registered land owner nor the notified person. Death certificate of Narayanasamy S/o Subba Naidu produced by the second respondent did not show that he is the registered land owner in respect of the subject property. In order to create deliberate misleading, the respondents 2 and 3 included two fathers name of Narayanasamy. Therefore, the contention of the respondents that Raju Naidu and Narayanasamy Naidu are the sons of the Subba Naidu is totally incorrect. Though this Court specifically directed the respondents to produce the records insofar as the service of notice under Section 5A and award Page 10 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 enquiry, even till today they are not able to produce the same, since still being traced. Therefore, the petitioner's father or his brother Krishna Naidu were never served any notice under Section 5A of the Act though they are registered land owners as per the adangal and the notified persons as per the acquisition notifications.
3.5 He further submitted that by taking advantage of the similarity in the name notified in the acquisition proceedings, now the respondents have produced the records showing that Narayanasamy S/o Subba Naidu S/o.Appaye Naidu. The petitioner challenged the acquisition proceedings in respect of the share allotted to his father which in turn devolved on the petitioner. Supported and corroborated by the documents related to partition, Resurvey and Resettlement Register and the notification as well as the award proceeding which contained the name of the petitioner's paternal uncle Krishna Naidu in respect of the property comprised in 411/1 and the name of his father in SF.No.411/2, totally admeasuring 9.10 acres. After issuance of notice under Section 6 of the Act, no notice was issued under Sections 9(3) and 10 of the Act for the purpose of award Page 11 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 enquiry. Though award dated 23.05.1994 recorded that the notices were served and acknowledgments were obtained, no documents are produced at any point of time to prove the same. By virtue of partition deed dated 15.05.1991, his grandfather being registered land owner as per the Resurvey and Resettlement Register, his father and his paternal uncle Krishna Naidu being registered land owners, as per the adangal record and the notified persons by virtue of the partition deed dated 30.03.1955 were not served any notice for the award enquiry. In fact, after passing award, no notice was served under Section 12 (2) of the Act. Even the respondents failed to produce any record to show that the person called Narayanasamy S/o Subba Naidu S/o Appaye Naidu was served with notice under Section 5A for award enquiry, notice under Section 9(3) and or after award proceedings dated 23.05.1994 under Section 12(2) of the Act.
3.6 The land acquisition officer also failed to send any draft award proposals to the competent authority for the purpose of getting prior approval to pronounce the award. As stipulated under the proviso to Page 12 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 Section 11(1) of the Land Acquisition Act, award was not pronounced after getting prior approval from the Government authority. Therefore, there is no valid award passed by the land acquisition officer as per Section 11 of the Act. As such, the entire acquisition proceedings have become lapsed by virtue of Section 11A of the Act inasmuch as there was no legally valid award being passed by the land acquisition officer.
3.7 He further submitted that the land acquisition officer did not tender or deposit the compensation amount before the competent civil court or any other forum known to law. No notice under Sections 9 (3), 10(1) and 12 (2) of the Act were served to the petitioner or his forefathers. They were never informed about the award amount and deposit of the compensation amount before any forum. Insofar as the possession of the subject land is concerned, the land acquisition officer did not take possession from the petitioner or his forefathers by way of panchanama as held by the Hon'ble Supreme Court of India in the judgment reported in (2020) 8 SCC 129 in the case of Indore Development Authority Vs. Manoharlal and ors etc. If the land has not been taken possession by way Page 13 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 of panchanama as per Section 16 of the Act, property under acquisition does not vest with the Government free from all encumbrances. Even till 19.06.2020, all the revenue records such as Resurvey and Resettlement Register, adangal stood in the name of the petitioner's forefathers. Only on 19.06.2020, the respondents 2 and 3 made revenue officials to remove their name and included the name of the Tamilnadu Housing Board in the revenue records. Even till today, the subject property is in possession and enjoyment of the petitioner and classified as agricultural land as per the master plan of the Coimbatore Town and Country Planning Authority and other lands are classified as industrial. Award was passed on 23.05.1994. But till today the compensation amount is not deposited before any competent civil court and not lying in the court, the reference under Sections 30 and 31(2) of the Act is not taken on file, numbered and assigned any LAOP numbers by the civil court. Thus, it is clear that no compensation award amount has been paid to any land owners including the petitioner. Therefore, if the respondents proceed with the development in the subject property, it is clear violation of Article 300A of the Constitution of India.
Page 14 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001
4. Per contra, the third respondent filed counter and Dr.R.Gouri, Standing Counsel submitted that the land related to SF.Nos.411/1, 411/2 to an extent of 9.10 acres situated in Vilankurichi Village, Coimbatore District along with other adjoining lands were subjected to land acquisition proceedings and was acquired by the proceedings vide award No.2 of 1994 dated 23.05.1994. The notified person for the land comprised in SF.No.411/1 was (1) P.S.G.Ganga Naidu and Sons Trust (2) Krishna Naidu S/o Gopal Naidu. Insofar as the land comprised in SF.No.411/2 was (1) Narayanasamy Naidu S/o Subba Naidu S/o.Appayi Naidu (2) Raju Naidu S/o Subba Naidu S/o Appayi Naidu. Therefore, the contentions raised by the petitioner that the notified person in SF.No.411/2 was Narayanasamy Naidu S/o.Gopal Naidu is false and contrary to the revenue records. The entire land acquisition proceedings were initiated as against the Narayanasamy S/o.Gopal Naidu who died during 09.01.1961 and it was initiated against dead person is void and false and contrary to the entries in the revenue records. In fact, the said Narayanasamy S/o.Subba Naidu S/o.Appayi Naidu who is not the petitioner's father in Page 15 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 respect of the land comprised in SF.No.411/2. The notified persons for the said land are Narayanasamy S/o Subba Naidu S/o Appayi Naidu and the Raju Naidu S/o Subba Naidu who are brothers. Therefore, the contentions raised by the petitioner that his father Narayanasamy S/o Gopal Naidu insofar as land comprised in SF.No.411/2 was not served any notice in respect of acquisition proceedings is deliberately false and misleading and the same is only an attempt to rest upon the principle that the land acquisition proceedings initiated against dead person is void and an attempt to convince this Court to suit his case.
4.1 She further submitted that insofar as the property comprised in SF.No.411/1, the notified persons are (1)P.S.G.Ganga Naidu and Sons Trust (2) Krishna Naidu S/o. Gopal Naidu, as far as S.F.No.411/2 is concerned, notified persons are (1) Narayanasamy Naidu S/o.Subba Naidu S/o.Appayi Naidu who is not the father of the petitioner and (2) Raju Naidu S/o.Subba Naidu. During the award enquiry one, Ramachandran S/o. Govindasamy Naidu appeared for award enquiry on behalf of the P.S.G.Ganga Naidu Sons Trust. He raised objections that the said lands Page 16 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 were gifted to P.S.G.Ganga Naidu and Sons Trust by Thiru.P.S.G.Govindasamy S/o Ganga Naidu in the year 1978. However, he has not produced any records in support of his claim. He has claimed compensation at Rs.20,000/- per cent. Insofar as the said Krishna Naidu is concerned, he did not appear for award enquiry. Therefore, the ownership and apportionment of the compensation could not be decided and the compensation amount ordered to be deposited in the civil court under Sections 31(2) and 30 of the Act. Insofar as the land comprised in SF.No.411/2 is concerned, son of the said Raju Naidu appeared for enquiry since the said Raju Naidu died. He has stated during the enquiry that he owns land in SF.No.410/2, 411/2 in Vilankurichi Village. However, he failed to produce any documents to show correct extent owned by him and requested to pay compensation at the prevailing market value at present. Hence, the ownership and apportionment of the compensation could not be decided and ordered to be deposited in the civil court under Sections 31(2) and 30 of the Land Acquisition Act. Therefore, the petitioner's father Narayanasamy alias G.N.Sam is the son of Gopal Naidu. His name does not reflect in the revenue records in Page 17 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 respect of the property comprised in survey No.411/1 and 411/2. Therefore, the award was passed in the name of the said Narayanasamy Naidu S/o Subba Naidu. The subject land along with other land to an extent of 2161.28 acres sitated at Vilankurichi Village were proposed to be acquired for Ganapathy Neighbourhood Scheme Phase-II. 4(1) notification was approved by the GO.Ms.No.306 Housing and Urban Development Department dated 05.03.1991 and published in the Government Gazatte on 20.03.1991. Enquiry under Section 5A was conducted on 07.08.1991. The objections raised by the land owners were duly communicated to the requisition body and objections are found in general in nature and over ruled.
4.2 She further submitted that draft declaration under Section 6 of the Act was approved by the Government in GO.Ms.No.269 Housing and Urban Development Department dated 26.05.1992. It was published in the Tamilnadu Government Gazatte dated 28.05.1992. Draft declaration under Section 7 of the Act was approved by the Government letter dated 30.09.1992. Thereafter, notice under Sections 9(3) and 10 of the Act were Page 18 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 duly served to the land owners and interested persons. Award enquiry as contemplated under Section 11 of the Act was conducted on 25.04.1994 and award was passed in award No.2 of 1994 dated 23.05.1994. Thereafter, the subject land was taken possession and handed over to the acquisition officer on 09.12.1994. Thereafter, a scheme proposal under Area Development Scheme has been executed by the Tamilnadu Housing Board.
4.3 However, in respect of the said property already writ petition was filed by one, Girija Janarthanan in WP.No.19925 of 1994 challenging the notification under Section 4(1) and 6 declaration before this Court and the same was allowed by order dated 22.09.2000. It was challenged by the Tamilnadu Housing Board in writ appeal in WA.No.1946 of 2002 and the same was also dismissed on 27.08.2002. However, the Tamilnadu Housing Board preferred SLP No.2346 of 2003 and the same was allowed by order dated 19.04.2004 and remanded the matter back to the learned Single Judge of this Court. In the meanwhile, the Government also filed writ appeal as against the order passed in WP.No.19925 of 1994 in Page 19 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 WA.No.1189 of 2003 and the same was allowed on the basis of the order passed by the Hon'ble Supreme Court of India. After remand, the writ petition in WP.No.19925 of 1994 was allowed by order of this Court dated 21.12.2004. Aggrieved by the same, writ appeal was filed by the Tamilnadu Housing Board in WA.No.1241 of 2005 and it was allowed by the Hon'ble Division Bench of this Court by order dated 25.11.2008 and the land acquisition proceedings in respect of the land comprised in SF.No.411/1 and 411/2 were upheld. In the meantime, the petitioner herein approached this Court by way of present writ petition challenging the acquisition proceedings in respect of the very same land. However, initially the writ petition was dismissed and review was also dismissed by this Court. Aggrieved by the same, writ appeal was filed in WA.No.3887 of 2019 and the same was allowed and remanded back to this Court for fresh disposal.
4.4 She further submitted that the scheme was announced in assembly on 24.03.2020 that a fresh Area Development Scheme will be implemented in the subject land along with other land to an extent of 33.12 acres. The third respondent also resolved to implement the Area Page 20 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 Development Scheme for financial value of Rs.4,498 lakhs vide Board Resolution dated 29.05.2020. It is proposed to develop 520 residential plots comprising of 85 HIG, 151 MIG, 40 LIG and 244 EWS plots and reserved places for public purpose, commercial, school sites etc. The revenue records were already changed in the name of the Tamilnadu Housing Board on 19.06.2020. To implement the said scheme, tender was floated and it was opened by Superintending Engineer on 26.06.2020. It is challenged by the petitioner in WP.No.8817 of 2020 and it is pending for adjudication. After passing an award, compensation amount of Rs.16,63,522/- was deposited in civil court in the name of the Principal Subordinate Judge dated 08.07.1994. Insofar as the possession is concerned, it was already handed over by the Land Acquisition Officer on 09.12.1994 to the Tamilnadu Housing Board. The possession of the land is vested with the Tamilnadu Housing Board along with in and around wire fencing and Tamilnadu Housing Board name boards also fixed in the subject land and prayed for dismissal of the writ petition. Page 21 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001
5. The second respondent filed counter and reiterated the counter filed by the third respondent.
6. Heard, Mr.AR.L.Sundaresan, Senior Counsel appearing for the petitioner, Mr.M.R.Gokul Krishnan, Government Advocate appearing for the respondents 1 & 2, and Dr.R.Gouri, Standing Counsel appearing for the third respondent.
7. The subject land comprised in survey No.411/1 and 411/2 situated at Vilankurichi Village, Coimbatore, which was under acquisition proceedings for the Ganapathy Neighbourhood Scheme Phase-II. The notification under Section 4(1) of the Act was approved by the Government in GO.Ms.No.306 Housing and Urban Development Department dated 15.03.1991 published in Government gazatte Supplement to Part II Section 2 dated 20.03.1991. The substance of the notification was published in two tamil dailies 'Theekadir' on 01.05.1991 and 'Pirpagal' on 02.05.1991 and also in the locality on 30.05.1991. On perusal of records revealed that the subject property was owned by Page 22 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 V.Gopal Naidu, who is the grandfather of the petitioner herein. He along with his wife Chinnammal and his three sons i.e. Purushothaman Naidu, G.Narayanasamy Naidu @ G.N.Sham and Krishna Naidu entered into partition deed dated 30.03.1955 registered vide document No.1272 of 1955. After demise of his grandfather and grandmother, the entire properties devolved upon their three sons. Thereafter the said property was divided amongst the legal heirs and the purchasers vide document No.2861 of 1991 in the Office of the Sub Registrar, Gandhipuram. Accordingly, the petitioner was allotted the subject land comprised in S.F.No.411 and along with 14 cents of land set apart for the purpose of road. Thus, he was allotted to an extent of 3 acres and 3 cents in SF.No.411. The total extent of the land comprised in SF.No.411 is 9.10 acres and divided equally to the petitioner's father and two other his brothers i.e. Purushothaman Naidu and Krishna Naidu. Thereafter, the entire revenue records in respect of the total extent of the property stood in the name of his grandfather i.e. Gopal Naidu as per the Resurvey and Resettlement Register and in the extracts of adangal. Under the acquisition proceedings 4(1) notification was notified and accordingly notified as Page 23 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 follows:
Government, dry, S.F.No.410-1, belonging to P.S.G.Ganga Naidu and Sons Trust bounded on the north by S.F.No.404, east by S.F.No.410-2, south by S.F.Nos.411-1 and 411-2 and west by S.F.No.413-2.79.0 hectares.
Government, dry, S.F.No.410-2, belonging to Narayanasamy Naidu, Raju Naidu bounded on the north by S.F.No.404, east by S.F.No.409, south by S.F.No.411-2 and west by S.F.No.410-1 – 0.81.0 hectares.
Government, dry, S.F.No.411-1, belonging to same as in S.F.No.410-1, bounded on the north by S.F.No.410-1, east by S.F.No.411-2, south by S.F.No.442 and west by S.F.Nos.412 and 413 - 1.65.0 hectares.
Government, dry, S.F.No.411-2, belonging to same as in S.F.No.410-2, bounded on the north by S.F.Nos.410- 1 and 410-2, east by S.F.No.407-1, south by S.F.No.442 and west by S.F.No.411-1 - 2.03.5 hectares.
Government, dry, S.F.No.412, belonging to Narayana Naicker and Subba Naicker bounded on the north by S.F.No.413 and 415, east by S.F.Nos.411-1 and 442, south by S.F.No.441-1 and 441-2A and west by S.F.No.416 – 2.87.0 hectares.
In the declaration made under Section 6 of the Old Page 24 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 L.A.Act, the subject property are described as follows:
Government, dry, S.F.No.410-1, belonging to P.S.G.Ganga Naidu and Sons Trust and Krishna Naidu, bounded on the north by S.F.No.404, east by S.F.No.410- 2, south by S.F.Nos.411-1 and 411-2 and west by S.F.No.413-2 – 79.0 hectares.
Government, dry, S.F.No.410-2, belonging to Narayanasamy Naidu, Raju Naidu and Balakrishnan, bounded on the north by S.F.No.404, east by S.F.No.409, south by S.F.No.411-2 and west by S.F.No.410-1 – 0.81.0 hectares.
Government, dry, S.F.No.411-1, belonging to same as in S.F.No.410-1, bounded on the north by S.F.No.410-1, east by S.F.No.411-2, south by S.F.No.442 and west by S.F.No.412 and 413-1.68.5 hectares.
Government, dry, S.F.No.411-2, belonging to same as in S.F.No.410-2, bounded on the north by S.F.No.410-1 and 410-2, east by S.F.No.407-1, south by S.F.No.442 and west by S.F.No.411-1 - 2.03.5 hectares.
Government, dry, S.F.No.412, belonging to Narayana Naicker, N.Chinnasamy Naidu and Subba Naicker, bounded on the north by S.F.No.413 and 415, east by S.F.Nos.411-1 and 442, south by S.F.Nos.441-1 and 441-2A and west by S.F.No.416 – 2.87.0 hectares. Page 25 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001
8. Insofar as the land comprised in SF.No.411/1 notified in the name of the petitioner's father's brother Krishna Naidu and P.S.G. Ganga Naidu and Sons and Trust. They are not registered owners of the property and they do not have any ownership or right or any interest over the property. Insofar as the land comprised in survey No.411/2 is notified in the name of the petitioner's father and one Raju Naidu and Balakrishnan. Therefore, the total extent of the land of 9.10 acres comprised in survey No.411 was sub-divided at the time of land acquisition by the officials and notified in the above mentioned names. Accordingly, the declaration notification under Section 6 and the award proceedings dated 23.05.1994 issued. The respondents have produced the documents such as 4(1) notification and 6 declaration along with award proceedings. All the records were not notified in the name of the petitioner's father and however, insofar as the property comprised in survey No.411/2, his father name was notified along with one Raju Naidu and Balakrishnan. Admittedly, they are not the registered owners of the said property as per the revenue records. The respondents failed to file any counter in the first round of litigation and Page 26 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 only in the writ appeal, they have filed counter and also additional counter affidavit. As rightly pointed out by the learned Senior Counsel, there are contradictions from the first counter and the additional counter filed by the respondents with regards to the mentioning of the owners of the property. Even on perusal of the records submitted by the respondents revealed that the name of the Narayanasamy in one place mentioned as Narayanasamy Naidu S/o Subba Naidu and in one place mentioned as Narayanasamy Naidu S/o Appaye Naidu. The specific stand of the respondents is that Narayanasamy and the Krishna Naidu are brothers. Whereas, in the notification mentioned name of the Narayanasamy and Raju Naidu with regards to the property comprised in survey No.411/2. However, the petitioner's father's name was not notified insofar as the land comprised in survey No.411/1. That apart, the revenue records produced by the respondents dated 16.06.2020 have shown name Narayanasamy Naidu S/o. Appaye Naidu and Raju Naidu S/o Appaye Naidu insofar as the property comprised in survey No.411/2. Insofar as land comprised in survey No.411/1, they mentioned in the name of Krishna Naidu S/o Gopal Naidu. Therefore, the respondents completely mess up with records and Page 27 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 have produced completely different records before this Court and they are no way connected with the notification issued under Section 4(1) and declaration under Section 6 of the Act.
9. The said Krishna Naidu is none other than the paternal uncle of the petitioner who is the brother of his father. In one counter, the respondents admitted that the petitioner's father and Krishna Naidu are brothers. However as per the revenue records, revealed that Krishna Naidu S/o Gopal Naidu, whereas Narayanasamy Naidu S/o Subba Naidu in one place and in another place as Narayanasamy Naidu S/o Appaye Naidu. However, notification under Sections 4(1) and 6 were not notified in the name of the petitioner's father who is the original owner of the property as per the revenue records produced by the petitioner. Therefore, no notice was issued to the petitioner's forefathers or to the petitioner as well as to any of the family members under Section 5A and under Sections 9(3) and 12(2) of the Act in spite of the fact that the petitioner's grandfather V.Gopal Naidu, his father Narayanasamy Naidu and his brother Krishna Naidu were registered land owner as per the Resurvey and Page 28 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 Resettlement Register. In the award proceedings also, it is recorded that the compensation amount shall be deposited before the civil court along with reference under Sections 30 and 31 (2) of the Act for the purpose of civil court to decide the apportionment of the compensation and to disburse the amount to the registered, notified persons and interested persons. However, it is not deposited and it is not lying in the account of the Court. Competent civil court so far could not register any reference under Sections 30 and 31 (2) of the Act.
10. The next point is that whether the award has been passed after obtaining approval from the competent authority as contemplated under the proviso to Section 11(1) of the Act. On perusal of the award, it was not passed after obtaining prior approval from the competent authority as contemplated under the said Act. Therefore, award proceedings dated 23.05.1994 in Award No.2 of 1994 is void and it has no value since it was not also passed within the stipulated time of two years as contemplated under Section 11 (1) of the Act. In this regard, the learned Senior Counsel relied upon the judgment in the case of State of U.P. and others Vs. Rajiv Page 29 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 Gupta and another reported in (1994) 5 SCC 686, wherein it is held that in the eye of law, proposed award of the Collector under Section 11 of the Act is not an award. Section 11 postulates of conducting an enquiry and making the award by the Collector. The first proviso envisages that “no award shall be made by the Collector under sub-section without the previous approval of the appropriate Government or of such officers as the appropriate Government may authorise in this behalf. It is common knowledge that exercising the power under the first proviso, the appropriate Government made rules or statutory orders or instructions whatever be the nomenclature, they have statutory operation giving authorisation to the Land Acquisition Collector to make an award upto a particular pecuniary limit without prior approval either of the appropriate Government or an officer authorised by the appropriate Government in that behalf. If the award exceeds the limit, prior approval of the State Governments or authorised officer is mandatory. Any award made in violation thereof, renders the award non est and void as it hinges upon the jurisdiction of the Land Acquisition Collector or Officer. Page 30 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001
11. In the case on hand, admittedly, there was no prior approval as contemplated under the provision of Section 11 (1) of the Act and as such award itself is not valid in the eye of law. Therefore, no notice was served on the petitioner or his forefathers. Even assuming that the notice was served on the petitioner's father's name Narayanasamy Naidu, he died way back in the year 1961 and the proceedings carried out by the respondents are nullity. On perusal of the counter filed in the writ appeal by the second respondent, revealed that they admitted the ownership of the petitioner's father as well as the petitioner in respect of the subject property. However, contrary to the said pleadings, in the additional counter stated that the petitioner's father is not the owner of the subject property as well as the notified person and the subject property belong to one person called Narayanasamy S/o.Subba Naidu S/o.Appaye Naidu. As stated above, when the respondents stated that the said Narayanasamy and Krishna Naidu are brothers, they could not be born to different fathers. Therefore, the records produced by the second respondent are something else and not to the persons who were notified under Sections 4(1) and 6 of the Act. Death certificate and likewise the legal heir certificate Page 31 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 produced by the second respondent in respect of the said Narayanasamy are no way connected with the subject property and have no relevance, since the petitioner produced documents claiming that his father was the owner of the property along with his brother Krishna Naidu which also corroborated the acquisition notifications as well as the award proceedings with regards to the title. Therefore, Narayanasamy S/o. Subba Naidu neither registered owner nor notified person. Death certificate produced by the second respondent carried name of the Narayanasamy S/o Subba Naidu and whereas the documents produced by the second respondent had shown the said Narayanasamy S/o.Appaye Naidu. Therefore, those documents have no relevance to the subject property.
12. Though there is specific direction with regards to the notice issued under Section 5A of the Act, no records have been produced by the respondents and they are not available and still being traced. It is also seen that after Section 6 declaration, there is no proof to show that notices were issued under Sections 9(3) and 10 of the Act for the purpose of award enquiry. Though the award dated 23.05.1994 recorded that the land Page 32 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 owners were present for enquiry, no documents are produced. After award dated 23.05.1994, notice required under Section 12(2) of the Act was not served to the land owners. To prove the same, the respondents failed to produce any of the records. The petitioner or his forefathers were not informed about passing of award or deposit of compensation amount before any forum related to the subject property.
13. While pending the writ petition, the petitioner filed petition to raise additional ground that the possession of the property has not been taken over and the compensation amount has not been paid to the petitioner as such the entire acquisition proceedings have lapsed under Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
14. Insofar the possession with regards to the subject property is concerned, is still with the petitioner. The next question is that if the respondents have taken symbolic possession of the property, it has to be taken only by way of panchnama as contemplated under Section 16 of the Act. If not followed the procedure as contemplated under Section 16 of Page 33 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 the Act, the subject property under acquisition does not vest with the Government free from all encumbrances.
15. The learned Senior Counsel in support of his contention, relied upon the judgments in the case of M.Palanisamy and others Vs. State of Tamilnadu rep. by its Secretary to Government and others reported in 2020 SCC Online Mad 2476 and in the case of K.Saraswathi and another Vs. State of Tamilnadu rep. by its Secretary to Government and others reported in 2020 SCC Online Mad 2475. This Court held after relying upon the judgment of the Constitution Bench of the Hon'ble Supreme Court of India reported in (2020) 8 SCC 129 in the case of Indore Development Authority Vs. Manoharlal and ors etc., that drawing of Panchnama of taking possession is the correct mode of taking possession in land acquisition cases, more particularly where the property acquired is a vacant land or a large tract of land. Taking possession by adopting to this mode, gives a lot of authenticity to prove that the land has been taken possession. Under the Transfer of Property Act, in cases of vacant land, possession always follow title. However, in the land acquisition proceedings, it works the other way round and here the title Page 34 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 vests with the State only after taking possession. In other words, title follows possession. This position is clear on a bare reading of Section 16 of the Act.
16. In the case on hand, the second respondent produced only the possession certificate as if the land was taken possession on 09.12.1994 and on the same day handed over to the Housing Board. Except this possession certificate, no other documents produced by the respondents to show that even symbolic possession of the subject property has been taken already. Admittedly physical possession of the property is still with the petitioner and the petitioner is in possession and enjoyment of the same. Therefore, the respondents failed to follow the procedure laid down by the Constitution Bench of the Hon'ble Supreme Court of India in the above case while taking possession of the subject property. Insofar as possession is concerned, after the award, the petitioner or his forefathers were not served with notice under Section 12 (2) of the Act. It provides for issuance of notice to the land owner after the award enquiry and determination of compensation and if this notice is issued and the land owner, either refuses Page 35 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 to receive the compensation or does not appear even after the receipt of the notice, the revenue deposit made thereafter, will amount to a proper tendering / paying of the compensation amount.
17. Admittedly, no notice was served under Section 12 (2) of the Act immediately after passing the award. On perusal of the award, shows that the compensation amount shall be deposited in the civil court along with reference under Sections 30 and 31(2) of the Act for the civil court to decide apportionment of the compensation and to disburse the awarded amount to registered, notified persons and interested persons. However, award amount is not deposited and is not lying in the court and the competent civil court so far could not register any reference as contemplated under Sections 30 and 31 (2) of the Act. Therefore, twin conditions as contemplated under Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 also attracted in the case on hand, since the compensation amount has not been deposited and the possession of the property has not been taken over. That apart, as stated supra, the petitioner or his forefathers were not served with any notice under the acquisition Page 36 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 proceedings and as such the entire acquisition proceedings have lapsed and the same cannot be sustained as against the petitioner insofar as the subject property.
18. In view of the above, the writ petition is allowed. The notification issued under Section 4 (1) of the Act, 1894 notified in the gazatte on 20.03.1991 and the declaration made under Section 6 of Act, 1894 notified in the Gazatte on 28.05.1992 and the award proceedings in Award No.2/94 dated 23.05.1994 of the second respondent in respect of the lands measuring an extent of acre 3.03 cents comprised in SF.No.411/1 and 411/2 in Vilankurichi Village, Coimbatore North is quashed. The authorities concerned are directed to mutate the revenue records in the name of the petitioner in respect of the lands measuring an extent of acre 3.03 cents comprised in SF.No.411/1 and 411/2 in Vilankurichi Village, Coimbatore North, within a period of six weeks from the date of receipt of copy of this order. Consequently, connected miscellaneous petition is closed. No order as to costs.
Page 37 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 28.10.2021 Speaking/Non-speaking order (2/2) Index : Yes/No Internet : Yes/No lok To 1.The Secretary to Government, Government of Tamilnadu, Housing and Urban Development, Chennai – 600 009 2.Special Tahsildar (Land Acquisition), Housing Scheme No.3, Coimbatore 3.Executive Engineer and Administrative Officer, Coimbatore Housing Unit, TNHB, Coimbatore Page 38 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 G.K.ILANTHIRAIYAN, J. lok Pre-delivery order made in Page 39 of 40 https://www.mhc.tn.gov.in/judis WP.No.3640 of 2001 WP.No.3640 of 2001 28.10.2021 Page 40 of 40 https://www.mhc.tn.gov.in/judis