Madras High Court
Em.Tharani Singh vs The State Of Tamil Nadu
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CAV ON:01/12/2014
DATED: /12 /2014
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
W.P.No.27670 of 2014
EM.Tharani Singh
... Petitioner
Vs.
1.The State of Tamil Nadu,
Rep. by its Secretary,
Housing and Urban Development Department,
Fort St. George, Chennai - 9.
2.The Tamil Nadu Housing Board,
Rep. by its Managing Director,
Nandanam, Chennai -35.
3.The Executive Engineer
and Administrative Officer,
Besant Nagar Division,
Tamil Nadu Housing Board Unit,
No.48, Dr.Muthulakshmi Road,
Adyar, Chennai - 600 020.
4.The Special Thasildar,
(Land Acquisition),
Tamil Nadu Housing Board Schemes
Arinjar Anna Shopping Complex,
7th Avenue, Thirumangalam,
Chennai - 600 101.
... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Declaration or any other writ or order or direction in the nature of writ, declaring that the land acquisition proceedings initiated under the Land Acquisition Act, 1894, in respect of the land of an extent of Ac.0.5 1/2 cents in Plot No.62, comprised in S.No.294/1A1B, situated at Sholinganallur Village, Kancheepuram District, belonging to the petitioner as lapsed in view of the Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30/2013).
For Petitioner : Mr.S.Ganesh
For Respondents : Mr.M.S.Ramesh
Addl. Govt. Pleader for R1 and R4
Mr.B.Vivekavanan (TNHB) for R2 & R3
- - -
O R D E R
The short facts of the case are as follows:-
The writ petitioner submits that he is the owner of the lands of an extent of 5 1/2 cents in Plot No.62, comprised in S.No.294/1A and 294/1B, now after sub division S.No.294/1A1B, situated at Sholinganallur Village, Kancheepuram District. The said lands were purchased by him in the year 1983 by virtue of a registered sale deed dated 20.06.1983 from one E.Kuppusamy Naicker and two others and registered as Document No.1799 of 1983, in the office of Sub Registrar, Adyar. Since then, he is in possession and enjoyment of the property. After the purchase, he has applied for mutation of the revenue records in his name. The Revenue Department has granted patta in his favour in Patta No.1264 after the sub division of the lands in S.No.294/1A and 294/1B by the Revenue Officials as S.No.294/1A1B.
2.The writ petitioner further submitted that on enquiry, the writ petitioner came to know and believe the same to be true that in the year of 2006 though the physical possession of the subject property was not taken by the fourth respondent from the writ petitioner, the second and third respondents unilaterally with the help of the revenue officials entered the name of the Housing Board in the revenue records under the guise of the Land Acquisition Proceedings.
3. The petitioner further submits that at the request of the second respondent, the first respondent in the year 1990 sought to acquire large extent of lands under the Land Acquisition Act, 1894 including the land belonging to him situated in and around Sholinganallur Village, for the formation of Sholinganallur Neighbourhood Housing Schemes Phase II. The first respondent had issued a notification under Section 4(1) of the Land Acquisition Act, 1894 hereinafter called the "Old Act" in G.O.Ms.No.454, dated 23.05.1990, which was followed by a Declaration under Section 6 of the Old Act in G.O.Ms.No.996, dated 17.06.1991. In so far as the notification issued under Section 4(1) of the Old Act, his name was omitted to be mentioned. But in the Declaration made under Section 6 of the Old Act, his name was mentioned only in respect of S.No.294/1A1A instead of S.No.294/1A1B, which was assigned to him by the Revenue Department in Patta No.1264, after the sub division of the lands in S.Nos.294/1A and 294/1B, which was originally held by his vendors. Thereafter, on receipt of the notice for an enquiry under Section 5A of the Old Act, he appeared for the same and objected to the Acquisition Proceedings. Then, he was served with a notice for award enquiry and the said notice was dated 02.04.1993. On receipt of the said notice, he has participated in the award enquiry in respect of S.No.294/1A1B. Even, in the notice dated 02.04.1993 for the award enquiry issued to him by the Land Acquisition Officer, the survey number was wrongly mentioned as S.No.294/1A1A. The said proceedings culminated in passing of an award in Award No.2/1993, dated 18.06.1993. However, in the award proceedings, his land in Survey No.294/1A1B was mentioned and his name was also mentioned.
4.The writ petitioner further submits that though the award was passed as early as in the year 1993, the third respondent did not pay the compensation to him till date. Further, on enquiry, he came to know that so far the compensation amount in respect of the above said award was not even deposited in the competent civil Court. In fact, the fourth respondent did not take any steps to take physical possession of the lands from the writ petitioner.
5. The petitioner further submits that though the award came to be passed as early as on 18.06.1993, the fourth respondent did not take any steps to pay the compensation amount to him. The compensation amount was neither offered to him nor deposited before the competent civil Court. On enquiry, he came to know and believed the same to be true that the award amount in respect of the above said award is only kept in the Revenue Department. As stated above, he is in continuous physical possession and enjoyment of his property without any hindrance whatsoever till date.
6.The petitioner further submits that in such circumstances, now, the Government of India, brought in New Land Acquisition Act in the place of the "Old Act", viz., The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Settlement Act, 2013 (Act 30/2013), hereinafter called the New Act and the same came into effect from 01.01.2014.
7. The petitioner further submitted that if the physical possession of the lands are not taken from the landowners or the compensation is not paid in respect of the proceedings initiated under the Old Act, as per Section 24(2) of the New Act, the entire acquisition proceedings initiated under the Old Act shall be deemed to have been lapsed. Since in the present case, the physical possession of the land is not taken from the petitioner by the fourth respondent even after passing of the award in the year 1983 and the compensation amount is neither offered nor paid or deposited in the civil Court till date, the respondents do not have any right to proceed further with the acquisition proceedings under the Old Act. Section 24 of the New Act reads as follows:-
"24. Land Acquisition process under Act No.1 of 1894 shall be deemed to have lapsed in certain cases:-
(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894:
(a) Where no award under Section 11 of the said land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply: or
(b) Where an award under said Section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.
(2) Notwithstanding anything contained in Sub-Section (1), in case of Land Acquisition Proceedings initiated under the Land Acquisition Act, 1894, where an award under the said Section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid in the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provision of this Act.
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under Section 4 of the Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."
8. The petitioner further submits that in view of the fact that the physical possession with respect of the subject property is continuously with the writ petitioner without any interruption and hindrance till date and the compensation is neither offered nor paid or deposited in the competent civil Court as required under the Old Act, the writ petitioner is entitled to seek a declaration that the entire Land Acquisition Proceedings initiated under the Old Act should be deemed to have lapsed in view of the Section 24(2) of the New Act.
9.The writ petitioner further submitted that the third respondent has already written letters to the Sub Registrar and the Tahsildar concerned, for not to give any kind of permission or grant patta or transfer any interest over the property on the request made by the landowners with regard to the lands covered under the above said notifications. As such the writ petitioner is not in position to deal with the property. Moreover, after the commencement of the New Act, the respondents are now taking steps to take physical possession from the landowners. But, in view of the provisions of the New Act as stated above the writ petitioner is getting a new and absolute right over the subject property so as to retain his title and possession as the New Act has removed the cloud over his property for the reasons stated above. Hence, the present writ petition.
10.The writ petitioner further submitted that the first respondent, while rejecting the claim of the other landowners covered under the above said acquisition proceedings seeking re-conveyance of their lands has stated that the possession of the lands under Acquisition were taken by the Tamil Nadu Housing Board. The said claim is made without any basis, since till today the physical possession of the subject lands was not taken from him by the Land Acquisition Officer, i.e, fourth respondent. When the fourth respondent alone is the competent authority under the Old Act to take physical possession of the lands for which, the Award came to be passed, the first respondent cannot claim that the third respondent has taken over the physical possession of the land under acquisition from the landowners. Hence, the petitioner has filed the above writ petition.
11.The learned counsel Mr.S.Ganesh, appearing for the petitioner would contend that till now the physical possession of the subject land was not taken by the Land Acquisition Officer, ie., the fourth respondent herein from the petitioner under section 16 of the Old Act. Further, he contended that though the award was passed as early as in the year 1993 till today neither the petitioner was offered and paid the compensation amount as per award No.2/93 in respect of the subject land nor the compensation amount was deposited before the competent Civil Court as envisaged under section 31 of the Old Act.
12. The highly competent senior counsel for the petitioner further contend that since the compensation was neither offered nor paid to the petitioner or deposited in the competent civil court and further the physical possession was not taken by the respondents from the landowners, Section 24(2) of the New Act is squarely applicable to the instant case for getting remedy. Hence, the entire acquisition proceedings initiated under the Old Act in respect of the subject land become lapsed. The learned senior counsel to sustain his submissions has cited the following judgments:-
(i) PUNE MUNICIPAL CORPN. vs. HARAKCHAND MISIRIMAL SOLANKI reported in (2014) 3 Supreme Court Cases 183
12. To find out the meaning of the expression, compensation has not been paid, it is necessary to have a look at Section 31 of the 1894 Act. The said Section, to the extent it is relevant, reads as follows:
31. Payment of compensation or deposit of same in Court - (1) On making an award under section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.
(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under section 18 would be submitted:
13. There is amendment in Maharashtra - Nagpur (City) in Section 31 whereby in sub-section (1), after the words compensation and in sub-section (2), after the words, the amount of compensation, the words and costs if any have been inserted.
14. Section 31(1) of the 1894 Act enjoins upon the Collector, on making an award under Section 11, to tender payment of compensation to persons interested entitled thereto according to award. It further mandates the Collector to make payment of compensation to them unless prevented by one of the contingencies contemplated in sub-section (2). The contingencies contemplated in Section 31(2) are: (i) the persons interested entitled to compensation do not consent to receive it (ii) there is no person competent to alienate the land and (iii) there is dispute as to the title to receive compensation or as to the apportionment of it. If due to any of the contingencies contemplated in Section 31(2), the Collector is prevented from making payment of compensation to the persons interested who are entitled to compensation, then the Collector is required to deposit the compensation in the court to which reference under Section 18 may be made.
15. Simply put, Section 31 of the 1894 Act makes provision for payment of compensation or deposit of the same in the court. This provision requires that the Collector should tender payment of compensation as awarded by him to the persons interested who are entitled to compensation. If due to happening of any contingency as contemplated in Section 31(2), the compensation has not been paid, the Collector should deposit the amount of compensation in the court to which reference can be made under Section 18.
16. The mandatory nature of the provision in Section 31(2) with regard to deposit of the compensation in the court is further fortified by the provisions contained in Sections 32, 33 and 34. As a matter of fact, Section 33 gives power to the court, on an application by a person interested or claiming an interest in such money, to pass an order to invest the amount so deposited in such government or other approved securities and may direct the interest or other proceeds of any such investment to be accumulated and paid in such manner as it may consider proper so that the parties interested therein may have the benefit therefrom as they might have had from the land in respect whereof such money shall have been deposited or as near thereto as may be.
17. While enacting Section 24(2), Parliament definitely had in its view Section 31 of the 1894 Act. From that one thing is clear that it did not intend to equate the word paid to offered or tendered. But at the same time, we do not think that by use of the word paid, Parliament intended receipt of compensation by the landowners/persons interested. In our view, it is not appropriate to give a literal construction to the expression paid used in this sub-section (sub-section (2) of Section 24). If a literal construction were to be given, then it would amount to ignoring procedure, mode and manner of deposit provided in Section 31(2) of the 1894 Act in the event of happening of any of the contingencies contemplated therein which may prevent the Collector from making actual payment of compensation. We are of the view, therefore, that for the purposes of Section 24(2), the compensation shall be regarded as paid if the compensation has been offered to the person interested and such compensation has been deposited in the court where reference under Section 18 can be made on happening of any of the contingencies contemplated under Section 31(2) of the 1894 Act. In other words, the compensation may be said to have been paid within the meaning of Section 24(2) when the Collector (or for that matter Land Acquisition Officer) has discharged his obligation and deposited the amount of compensation in court and made that amount available to the interested person to be dealt with as provided in Sections 32 and 33.
18. 1894 Act being an expropriatory legislation has to be strictly followed. The procedure, mode and manner for payment of compensation are prescribed in Part V (Sections 31-34) of the 1894 Act. The Collector, with regard to the payment of compensation, can only act in the manner so provided. It is settled proposition of law (classic statement of Lord Roche in Nazir Ahmad) that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.
19. Now, this is admitted position that award was made on 31.01.2008. Notices were issued to the landowners to receive the compensation and since they did not receive the compensation, the amount (Rs.27 crores) was deposited in the government treasury. Can it be said that deposit of the amount of compensation in the government treasury is equivalent to the amount of compensation paid to the landowners/persons interested? We do not think so. In a comparatively recent decision, this Court in Agnelo Santimano Fernandes, relying upon the earlier decision in Prem Nath Kapur, has held that the deposit of the amount of the compensation in the State's revenue account is of no avail and the liability of the state to pay interest subsists till the amount has not been deposited in court.
20. From the above, it is clear that the award pertaining to the subject land has been made by the Special Land Acquisition Officer more than five years prior to the commencement of the 2013 Act. It is also admitted position that compensation so awarded has neither been paid to the landowners/persons interested nor deposited in the court. The deposit of compensation amount in the government treasury is of no avail and cannot be held to be equivalent to compensation paid to the landowners/persons interested. We have, therefore, no hesitation in holding that the subject land acquisition proceedings shall be deemed to have lapsed under Section 24(2) of the 2013 Act.
21. The argument on behalf of the Corporation that the subject land acquisition proceedings have been concluded in all respects under the 1894 Act and that they are not affected at all in view of Section 114(2) of the 2013 Act, has no merit at all, and is noted to be rejected. Section 114(1) of the 2013 Act repeals 1894 Act. Sub-section (2) of Section 114, however, makes Section 6 of the General Clauses Act, 1897 applicable with regard to the effect of repeal but this is subject to the provisions in the 2013 Act. Under Section 24(2) land acquisition proceedings initiated under the 1894 Act, by legal fiction, are deemed to have lapsed where award has been made five years or more prior to the commencement of 2013 Act and possession of the land is not taken or compensation has not been paid. The legal fiction under Section 24(2) comes into operation as soon as conditions stated therein are satisfied. The applicability of Section 6 of the General Clauses Act being subject to Section 24(2), there is no merit in the contention of the Corporation.
(ii) Raghbir Singh Sherawat vs. State of Haryana reported in (2012) 1 Supreme Court Cases 792
25. The legality of the mode and manner of taking possession of the acquired land has been considered in a number of cases. In Balwant Narayan Bhagde V M.D.Bhagwat Untwalia, J. referred to the provisions of Order 21 Rules 35, 36, 95 and 96 of the Code of Civil Procedure and opined that the delivery of symbolic possession should be construed as delivery of actual possession of the right, title and interest of the judgment debtor. His Lordship further observed that if the property is the land over which there is no building or structure, the delivery of possession over the judgment-debtor's property becomes complete and effective against him the moment the delivery is effected by going upon the land. The learned Judge went on to say (SCC pp. 710-11, para 25) 25.When a public notice is published at a convenient place or near the land to be taken stating that the Government intends to take possession of the land, then ordinarily and generally there should be no question of resisting or impeding the taking of possession. Delivery or giving of possession by the owner or the occupant of the land is not required. The Collector can enforce the surrender of the land to himself under section 47 of the Act if impeded in taking possession. On publication of the notice under Section 9(1) claims to compensation for all interest in the land have to be made; be it the interest of the owner or of a person entitled to the occupation of the land. On the taking of possession of the land under Section 16 or 17 (1) it vests absolutely in the Government free from all encumbrances. It is, therefore, clear that taking of possession within the meaning of Section 16 or 17 (1) means taking of possession on the spot. It is neither a possession on paper nor a 'symbolical' possession as generally understood in civil law. But the question is what is the mode of taking possession? The Act is silent on the point. Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking of possession is not necessary. No further notice beyond that under Section 9(1) of the Act is required. When possession has been taken, the owner or the occupant of the land is dispossessed. Once possession has been taken the land vests in the Government.
26.Bhagwati, J. (as he then was) and Gupta, J., who constituted the majority did not agree with Untwalia, J. and observed as under: (Balwant Narayan Bhagde case, SCC pp. 711-12, para 28) 28. ... We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking 'symbolical' possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard-and-fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and invoidable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tahsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tahsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it.
27.In Banda Development Authority v. Moti Lal Agarwal, the Court referred to the judgments in Balwant Narayan Bhagde v. M.D.Bhagwat, Balmokand Khatri Educational and Industrial Trust V State of Punjab, P.K.Kalburqui v. State of Karnataka, NTPC Ltd V Mahesh Dutta, Sita Ram Bhandar Society V Govt. (NCT of Delhi) and culled out the following propositions: (Banda Development Authority case, SCC p. 411 para 37)
i)No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
ii)If the acquired land is vacant the act of the State authority concerned to go to the spot and prepare a panchanama will ordinarily be treated as sufficient to constitute taking of possession.
iii)If crop is standing on the acquired land or building / structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building / structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchanama. Of course, refusal of the owner of the land or building / structure may not lead to an inference that the possession of the acquired land had not been taken.
iv)If the acquisition is of a large tract of land, it may not be possible for the acquiring / designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
v)If beneficiary of the acquisition is an agency / instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17 (3-A) and substantial portion of the acquired land has been utilized in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken.
28.If the appellant's case is examined in the light of the propositions culled out in Banda Development Authority V. Moti Lal Agarwal we have no hesitation to hold that possession of the acquired land had not been taken from the appellant on 28.11.2008 i.e., the day on which the award was declared by the Land Acquisition Collector because crops were standing on several parcels of land including the appellant's land and possession thereof could not have been taken without giving notice to the landowners. That apart, it was humanly impossible to give notice to a large number of persons on the same day and take actual possession of the land comprised in various survey numbers (total measuring 214 acres 5 kanals and 2 marlas).
29.In view of the above discussion, we hold that the record prepared by the Revenue Authorities showing delivery of possession of the acquired land to HSIIDC has no legal sanctity and the High Court committed serious error by dismissing the writ petition on the specious ground that possession of the acquired land had been taken and the same vested in the State Government in terms of Section 16.
(iii)PATASI DEVI v. STATE OF HARYANA reported in (2012) 9 Supreme Court Cases 503.
A. Land Acquisition Act, 1894 Se.6 and 16 Possession of acquired land Burden of proof Absence of any evidence to show that actual or even symbolic possession of appellant's land and house constructed over it was taken by competent authority between 09.12.2009 ie., date of which award was passed and 20.01.2010 ie., date on which writ petition was filed, and the same was handed over to HUDA Hence, impugned judgment dismissing appellant's petition solely on ground that it was filed after passing of award, unsustainable Constitution of India Art. 226 Maintainability of final orders.
B. Land Acquisition Act, 1894 Se. 4 and 6 Challenge to Acquisition on ground of colourable exercise of power Evidence showing that though notifications issued under Se. 4 and 6 recited that land was acquired for public purpose, but real object of acquisition was to benefit coloniser R-6 who wanted to develop the area into residential colony Moreover, appellant's land was surrounded by land R-6 and earlier also land acquired for same public purpose was transferred to R.6 Hence, acquisition of appellant's land was vitiated due to colourable exercise of power Acquisition quashed.
(iv) Karuppathal Vs- State of Tamilnadu reported in (2014) 5 CTC 282
(v) Union of India and others Vs- Shiv Raj and others reported in (2014) 6 SCC 564
(vi) Bimla Devi and others Vs- State of Haryana and others reported in (2014) 6 SCC 583
(vii) Bharat Kumar -Vs- State of Haryana and another reported in (2014) 6 SCC 586
(viii) P. Jeyadevan Vs- State of Tamilnadu reported in (2014) 4 MLJ page 325
(ix) A.Nagarajan and others -Vs- Secretary to Government and others reported in (2014) 6 MLJ 29
(x) and a very recent judgment of the Apex Court in Sree Balaji Nagar Residential Association Vs- State of Tamil Nadu reported in (2014) 5 CTC page 857
13.Per contra, the second respondent has filed a counter affidavit along with typed set of papers relating to the acquisition of the petitioner's land. In the counter affidavit, the second and third respondents submitted that the Tamil Nadu Housing Board has acquired the lands in Sholinganallur Village including the land in S.No.294/1A1B for the formation of Sholinganallur Phase-II Scheme. The Notification under Section 4(1) of the Land Acquisition Act was approved by the Government in G.O.Ms.No.454, Housing & Urban Development, dated 23.05.1990. The Draft Declaration under Section 6 of the Land Acquisition Act was approved by the Government in G.O.Ms.No.996, Housing & Urban Development Department, dated 17.06.1991. After observing the usual formalities of the Land Acquisition Act, Award was passed in Award No.2/1993, dated 18.06.1993, 1/98, dated 30.06.1998 and 1/2001, dated 23.11.2001. As per the Award, the land in S.No.294/1A1B is covered in the Award No.2/93, dated 18.06.1993 passed by the Land Acquisition Officer of Tamil Nadu Housing Board Schemes. As per the Award, the above said land stands registered in the following names:- 1) J.Saroja, 2) Dhandapani, 3) Mathijain, 4)Saroja, 5)Jayaraj, 6)J.Krishnamoorthi, 7)K.Alamelu Ammal and 8) S.Subramani. It is inferred from the Award that the compensation amount was ordered to be deposited under Section 30 and 31(2) of the Land Acquisition Act in the following names:- 1) Mathijain, 2)Saroja, 3)Jayaraj, 4)Krishnamoorthi, 5)Alamelu Ammal and 6)Subramani. Subsequently, the above said lands were handed over to the Tamil Nadu Housing Board by the Land Acquisition Officer on 18.04.1994. Since then, the lands are vested with Tamil Nadu Housing Board. Subsequently, the Tamil Nadu Housing Board has initiated Scheme proposal in the land in S.No.294/1A1B along with some other lands of Sholinganallur Village. In the above said lands, it is proposed to construct 1500 Multi Storied Building flats using a new technology namely "Pre-Fab Technology". For the above said work, tender was also awarded to the Contractor and the work is in progress. The Scheme comes under one of the Schemes announced in the floor of Assembly-2013 by the Hon'ble Chief Minister of Tamil Nadu.
14. The second and third respondents further submitted that the petitioner is an "encroacher" of land in Survey No.294/1A1B and he vacant land for an extent of 5.5 cents is situated at Sholinganallur Scheme Phase-II. Further, the said lands are essentially required by the Housing Board for implementation of Neighbourhood Schemes. Further, the Tamil Nadu Housing Board has issued application forms to sell the flats and the public who obtained the application forms have also registered their application for allotment. Therefore, the said lands are essentially required for implementation of Housing Scheme for General Public.
15. The second and third respondents further submitted that it is inferred from the Award that the compensation was ordered to be deposited under Section 30 & 31(2) of the Land Acquisition Act in the following names:- 1) Mathijain, 2)Saroja, 3)Jayaraj, 4)Krishnamoorthi, 5)Alamelu Ammal and 6)Subramani. Further, the Tamil Nadu Housing Board has initiated Scheme proposal in the land in S.Nos.294/1A1B along with some other lands of Sholinganallur Village. In the above said lands, it is proposed to conduct 1500 Multi Storied Building flats using a new technology namely, "PRE-FAB TECHNOLOGY". For the above said work, Tender was also awarded to the Contractor and the work is in progress. Hence, the contention of the petitioner that he is in continuous possession of the property is stoutly denied.
16.The second and third respondents further submitted that land in S.No.294/1A1B was acquired by the Tamil Nadu Housing Board vide Award No.2/93, dated 18.06.1993. As per award the compensation amount was also deposited in the Civil Court under section 30 and 31(2) of the Old Act. Subsequently, the physical possession of the above said lands are handed over to the Tamil Nadu Housing Board by the Land Acquisition Officer on 18.04.1994. Since, then the above said lands are vested with the Tamil Nadu Housing Board. Hence, the Tamil Nadu Housing Board has addressed the Sub Registrar and the Tahsildar concerned for not to give any kind of permission or grant or transfer any interest over the property on request of the other persons. Hence, the contention of the petitioner is denied.
17. The second and third respondents further submitted that the Tamil Nadu Housing Board has initiated scheme proposal in the land in S.No.294/1A1B along with some other lands of Sholinganallur Village. In the above said lands, it is proposed to construct 1500 Multi Storied Building Flats using a new technology namely PRE FAB TECHNOLOGY. For the above said work, tender is also awarded to the contractor and the work is in progress. The schemes comes under one of the schemes announced in the floor of Assembly 2013 by the Hon'ble Chief Minister of Tamil Nadu. For the above said scheme Tamil Nadu Housing Board has issued application forms to sell the flats and the public who obtained the application forms are also registered their application for allotment. At this stage, the petitioner herein as approached this Court. Hence the contention of the petitioner is unacceptable.
18. The second and third respondents further submitted that the possession of the land in S.No.294/1A1B of Sholinganallur Village was handed over to Tamil Nadu Housing Board by the Land Acquisition Officer on 18.04.1994 and as per Award, the compensation amount was also ordered to be deposited in the Court. Hence, the Land Acquisition Proceedings initiated under the Land Acquisition Act, 1894 for the above said land does not get lapsed and the same holds good.
19. The second and third respondents further submitted that the writ petitioner is not an original owner and the writ petitioner have no locus standi to claiming rights under section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013. Therefore the present writ petition is liable to be dismissed for misrepresentation and suppression of real facts. In further, the writ petitioner intentionally suppressed the real facts to the court.
20. The second and third respondents further submitted that the writ petitioner has tried for repossession on the acquired land and filed the present writ petition and claiming rights over the property. Therefore, the writ petitioner is mere encroacher and he cannot claim the rights over the property, without proving his legal right and title.
21.The second and third respondents further submitted that the petitioner has not produced any relevant revenue records, patta, chitta, property tax receipt and EB connection to prove his ownership. In further, the petitioner has not produced the copy of the sale deed doc. No.1799/1983, dated 20.06.1983. The copy of the letter issued under section 9(3) and 10 enclosed in the page 6 is not related to the petitioner, the name mentioned as Dharan Singh and the copy of the patta enclosed in page No.7 also not relevant, because the name is manipulates. However, the writ petitioner is mere encroacher and he created the revenue records and other records in his favour.
22.The second and third respondents further submitted that the writ petitioner is encroacher, he cannot challenge the acquisition proceedings in the belated supra, without supporting of valid documents and title. However, the physical possession of the lands has already been taken over by the TNHB on 18.04.1994. therefore the present writ petition is not maintainable either by law or on facts.
23.The very competent Additional Government Pleader Mr.M.S. Ramesh, appearing for the respondents 1 and 4, contended on the basis of the counter filed by the 4th respondent that the possession of the lands were taken and handed over to the Tamil Nadu Housing Board by the Land Acquisition Officer on 18.04.1994 and the compensation amount was also ordered to be deposited in the civil court. He further contended that since the lands were already handed over to the Tamil Nadu Housing Board and the compensation was already ordered to be deposited in the civil court, the petitioner cannot avail the benefit under section 24(2) of the New Act. In view of the above said position the present writ petition is not maintainable for getting a relief under the New Act.
24.Relying on the counter affidavit and the documents in the typed set of papers filed by the respondents 2 and 3, the learned counsel, Mr. Viveka Vanan, argued that after observing all the formalities under the Old Act the entire acquisition proceedings attained finality. Further, the possession of the lands were also taken from the Land Acquisition Officer, Tamilnadu Housing Board Schemes on 18.04.1994 and the compensation amount awarded was also ordered to be deposited in the civil court under section 30 and 31 of the Old Act. Now, the second respondent is also taking speedy action to develop the subject land retained by the TNHB along with other lands for a comprehensive housing scheme. As such, at this stage, the writ petitioners prayer is not maintainable.
25.Having considered the submissions made by the Learned Counsel for the petitioner and the counsel for the respondents 1 to 4 and on perusal of the counter affidavits and the typed set of papers as well as the various decisions referred to above on Section 24(2) of the New Act, this court is of the view that:
(i) In the counter affidavits filed by the respondents, it is stated that the possession of the land was taken from the Land Acquisition Officer on 18.04.1994 by the Tamilnadu Housing Board and consequently the revenue records was mutated in the name of the Tamilnadu Housing Board. However, no documents were produced before this Court, evidencing the taking of the possession of the subject land by the 4th respondent ie., the Land Acquisition Officer, from the petitioner under section 16 of the Old Act. The document relied on by the respondents 2 and 3 dated 18.04.1994 cannot be accepted as the same do not have any legal entity and significance. The said document being an inter-departmental one, do not create any right over the subject property in favour of the Tamilnadu Housing Board as the same is not valid in law. In fact, the mode and manner of taking possession of the land under the Land Acquisition Act (Old Act) is clearly spelt out in the judgements reported in (i) Raghbir Singh Sherawat v. State of Haryana reported in (2012) 1 Supreme Court Cases 792 and (ii) PATASI DEVI v. STATE OF HARYANA reported in (2012) 9 Supreme Court Cases 503. Moreover, section 24(2) of the New Act stipulates that physical possession of the land should be taken by the Land Acquisition Officer under the Old Act. The mutation done in the name of TNHB in the revenue records, which is relied on by the respondents 2 and 3 will not serve any purpose in the absence of any proof for taking possession of the land. Under the new act it is the obligation on the part of the state government to prove that the physical possession of the land was taken from the land owners, but it did not do so. Since, with regard to the contingency of taking physical possession as envisaged under section 24(2) of the New Act, the respondents are not in a position to sustain their contention by way of production of any records, the petitioner is entitled to get a relief under section 24(2) of the New Act.
(ii) It is stated in the counter affidavits that in respect of the subject land an award was passed in Award No.2/93, dated 18.06.1993 and the award amount was ordered to be deposited in the civil court under section 30 and 31 of the Old Act. It is further stated that the writ petitioner being a subsequent purchaser, encroached the subject land and he is no way interested in the subject land. However, on perusal of the documents filed by the writ petitioner and the Award proceedings, it is clearly established that the writ petitioner had purchased the property in the year 1983 much prior to the acquisition and he also served with notice for award enquiry. In fact, the writ petitioner participated in the award enquiry and claimed right over the subject land. In the said award proceedings, the writ petitioner name was notified as one among the interested person, while the Land Acquisition Officer ordered for reference under section 30 and 31 of the Old Act. Hence, the contention of the respondents is not sustainable. More over, no document was produced before this court to show that the amount was deposited in the civil court. So, in the absence of any document to show that the award amount was deposited in the civil court, the petitioner is entitled for a relief on the ground that the compensation was not paid as per section 24(2) of the New Act.
(iii) The respondent's notification had been issued in the year 1990 for acquiring the petitioner's land as well as neighbouring lands for forming Neighbourhood Housing Scheme. As of now, i.e, even after a lapse of around 30 years, the Housing Scheme had not been implemented over the petitioner's land. As such, the very purpose for which, the lands have been acquired has been defeated.
(iv) The petitioner's land which is measuring an extent of 5 1/2 cents is a meagre area and is required for his use. Hence, the petitioner made objections for acquiring the land at the time of enquiry, which was conducted under Section 5A of the Old Act.
(v) If the meagre quantity of land as mentioned above is handed over to the Housing Board, they would in turn only allot the same to the public, which neither makes any practical sense nor meaningful as the petitioner himself also hails from the weaker section of the society.
(vi) As per the counter statement of the respondents, the subject land so far is not utilized by the Housing Board and the said land is still vacant. The purpose for forming a Neighbourhood Housing Scheme had not been implemented after a lapse of 23 years. Therefore, the contention of the petitioner that he should be permitted to possess and enjoy his property is a lawful one.
26.On considering the facts and circumstances of the case and arguments advanced by the highly competent counsels on all sides and on perusal of the counter affidavits and the documents filed in the typed set and this courts view listed above as (i) to (vi), this court allows the writ petition and declares that the land acquisition proceedings initiated under the Land Acquisition Act, 1894, in respect of an extent of Ac.0.5 = cents in plot No.62, comprised in S. No.294/1A1B, situated at Sholinganallur Village, Kancheepuram District, belonging to the petitioner, has lapsed in view of the Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (Act 30 of 2013).
27. In the result, the writ petition is allowed. There is no order as to costs.
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Index : Yes/No.
Internet : Yes/No.
ub
C.S.KARNAN, J.
ub
1. The Secretary,
Government of Tamil Nadu,
Housing and Urban Development Department,
Fort St. George, Chennai - 9.
2.The Managing Director,
Government of Tamil Nadu,
Tamil Nadu Housing Board,
Nandanam, Chennai -35.
3.The Executive Engineer
and Administrative Officer,
Besant Nagar Division,
Tamil Nadu Housing Board Unit,
No.48, Dr.Muthulakshmi Road,
Adyar, Chennai - 600 020.
4.The Special Thasildar,
(Land Acquisition),
Tamil Nadu Housing Board Schemes
Arinjar Anna Shopping Complex,
7th Avenue, Thirumangalam,
Chennai - 600 101.
Pre Delivery Order made in
W.P.No.27670 of 2014
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