Madras High Court
P.Sundaramoorthy vs The Secretary To Government on 22 December, 2014
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22 /12 /2014 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN W.P.No.19089 of 2013 M.P.Nos.1 and 3 of 2013 P.Sundaramoorthy ... Petitioner Vs. 1.The Secretary to Government, Housing and Urban Development Department, Secretariat, Chennai - 600 009. 2.The District Collector, Cuddalore District, Cuddalore. 3.The Chairman, The Tamil Nadu Housing Board, Nandanam, Chennai - 600 009. 4.The Executive Engineer & Administrative Officer, Villupuram Housing Unit, East Pondy Road, Maharahapuram, Villupuram. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, to call for the records of the first respondent in his proceeding in Letter No.7197/Ne.A.2(1)/13-6, dated 10.06.2013 and quash the same and consequently direct the respondents to re-convey the land situated in Survey No.13/5 measuring an extent of 0.13.50 Hectares in Velisemmandalam Village, Cuddalore District to the petitioner. For Petitioner : Mr.A.R.L.Sundaresan, Senior Counsel For Mr.N.Suresh For Respondents : Mr.S.Gomathinayagam Additional Advocate General Assisted by Mr.M.S.Ramesh, Additional Government Pleader for R1 & R2 Mr.S.Vanchinathan TNHB for R3 and R4 - - - CAV on 02/12/2014 and pronounced on /12/2014 O R D E R
The petitioner submits that he is the owner of a land measuring to an extent of 0.13.50 hectares in Survey No.13/5 in Velisemmandalam Village, Cuddalore District. The land along with other land situated adjacent to their land were proposed to be acquired by the Government for the purpose of implementation of Neighbourhood Housing Scheme by the Tamil Nadu Housing Board. Consequent to the same, the Special Tahsildar, Land Acquisition, Housing Board Scheme, Cuddalore, acquired the land for a total extent of 5.63.50 hectares which belonged to six families by its award No.5/95, dated 05.01.1995 which included his land also. The petitioner further submits that since the award was passed without following the mandatory provisions of Proviso to Section 11 of the Land Acquisition Act, 1894, the same was successfully challenged before this Court, by one Mr.Lakshmana Padayachi, whose land was situated in Survey No.14/1 which was also covered under the Award No.5/95, dated 05.01.1995 and this Court after hearing both the parties set-aside the entire award No.5/95, dated 05.01.1995 by its order in W.P.No.17433 of 1999, dated 08.03.2000.
2. The petitioner further submits that no appeal has been filed against the said order of this Court and it attains finality and the land was also re-conveyed to Mr.Lakshmana Padayachi in compliance of the order in W.P.No.17433 of 1999, dated 08.03.2000. The petitioner further submits that he has reliably come to understand that the land was also sold to the subsequent purchaser. Since the entire award No.5/95, dated 05.01.1995 itself was set-aside by this Court, all the lands covered in the said award should have been returned to the persons from whom lands were acquired and consequently, he should also have been given his land situated in Survey No.13/5, which was also covered in the same award. The petitioner further submits that pursuant to the order of this Court in W.P.No.17433 of 1999, dated 08.03.2000, the Tamil Nadu Housing Board also passed a proceeding dated 07.06.2005 based on the board resolution dated 15.09.2004 whereby, it resolved to drop the land acquisition proceeding which was acquired as per Award No.5/95, dated 05.01.1995, which covered his land also situated in Survey No.13/5. Since the Tamil Nadu Housing Board itself, for which lands were acquired, took a decision to drop the Land Acquisition Proceedings, the entire lands acquired ought to have been released to the respective owners.
3. The petitioner further submits that since his land situated in Survey No.13/5 was not re-conveyed pursuant to the order of this Court in W.P.No.17433 of 1999, dated 08.03.2000 in and by which, the entire award No.5/95, dated 05.01.1995 itself was set-aside and the proceeding of the Tamil Nadu Housing Board dated 07.06.2005, which fact was known to him belatedly, he approached the respondents, to re-convey his land and expressed his willingness to return Rs.27,671/- which was received as compensation for acquisition of his land, through his representation dated 15.10.2012.
4. The petitioner further submits that since the same was kept pending without consideration, he has approached this Court and this Court by its order in W.P.No.5957 of 2013, dated 12.03.2013 directed him to approach the first respondent to re-convey his land situated in Survey No.13/5 as the entire award No.5/95 dated 05.01.1995 was already set-aside by the High Court in W.P.No.17433 of 1999, dated 08.03.2000 and the Tamil Nadu Housing Board also passed a proceeding dated 07.06.2005 whereby it resolved to drop the Land Acquisition Proceedings. The petitioner further submits that as per the order of this Court in W.P.No.5957 of 2013, dated 12.03.2013, he made a detailed representation on 04.04.2013 to the first respondent for re-conveyance of his land enclosing all the relevant documents. While this being under consideration before the first respondent, as per the order of this Court for re-conveyance, instead of re-conveying the land, without any authority, the respondents are indulging in some work in his land which is totally against the letter and spirit of the order passed by this Court in W.P.No.17433 of 1999, dated 08.03.2000 and W.P.No.5957 of 2013, dated 12.03.2013. Since the matter is under consideration for re-conveyance before the first respondent, before the order is passed as per the order of this Court, no one has any right to interfere with the possession of the land and alter the structure of the land which will amount to deliberately flouting the order of this Court and nullifying the order of this Court. Since the respondents were indulging in some work, which was against the order passed by this Court, the petitioner issued a contempt notice on 03.06.2013 and subsequently, the respondents passed an impugned order dated 10.06.2013 in his proceedings in Letter No.7197/Ne.A.2(1)/13-6, rejecting his claim for re-conveyance by giving untenable reasons. Hence, the petitioner entreats the Court to allow the above writ petition.
5. The third respondent has filed a counter affidavit on behalf of him and on behalf of fourth respondent. The third respondent submits that the land in Survey No.13/5 in Velisemmandalam Village, Cuddalore District is originally owned by one Thiru.Duraikannu and five others. The Special Tahsildar (Land Acquisition), Housing Board Schemes, Cuddalore acquired lands with total extent of 5.63.50 Hectares, which belongs to six families as per Award No.5/95, dated 05.01.1995, which also includes other lands. The third respondent further submits that the order passed by this Court in W.P.No.17433 of 1999, dated 08.03.2000 is applicable only to the petitioner i.e., Lakshmana Padayatchi. This writ petitioner cannot claim the relief rendered in the above order. In a similar case, this Court by its order dated 30.04.2009 in W.P.No.2311 of 2009, has observed that relief rendered in a writ petition cannot be applicable for all the landowners even though the lands are covered in the same notification.
6. The third respondent further submits that the petitioner's statement is ridiculous. The Government is the competent authority to drop Land Acquisition Proceedings. Therefore, the submission that the Board has passed proceedings to drop the Land Acquisition Proceedings is incorrect and misguiding. At present, the Board is in the stage to implement the Scheme in the petitioner's land. Therefore, after accepting the enhanced compensation, requesting re-conveyance is unfair. The third respondent further submits that the petitioner is misleading the Court by giving incorrect informations that the Board has passed proceedings dated 07.06.2005 in accordance with the High Court's order in W.P.No.17433 of 1999 dated 08.03.2000. After accepting the enhanced compensation and while the Board is in process of implementing scheme in the lands including the petitioner's land, requesting re-conveyance at this stage is unjust. The third respondent further submits that the order passed by this Court in W.P.No.17433 of 1999, dated 08.03.2000 is not applicable to the case of the petitioner. After lapse of more than eighteen years and after passing of award and after accepting the enhanced compensation and while the Board is in process of implementing scheme in the lands including the petitioner's land, requesting re-conveyance at this stage is unjust.
7. The third respondent further submits that the order of this Court in W.P.No.17433 of 1999, dated 08.03.2000 does not apply to the petitioner. After lapse of more than eighteen years after passing of award and after accepting the enhanced compensation and while the Board is in process of implementing a scheme, requesting re-conveyance of the land is unacceptable. The third respondent further submits that this Court by its order in W.P.No.5957 of 2013, dated 12.03.2013 directed the petitioner to approach the first respondent for consideration of his request for re-conveyance of the land situated in Survey No.13/5. Accordingly, after due consideration of all the facts, the Government has rejected the petitioner's plea for re-conveyance of the land under reference. After pleading for enhanced compensation for the above land in LAOP No.29/2002 in A.S.No.509 of 2004 and after accepting the enhanced compensation, the writ petitioner is indulging in delay tactics by filing consequent writ petitions. The third respondent further submits that as ordered by the High Court in an order dated 03.09.2010, the Board sanctioned a sum of Rs.2,33,363/- towards enhanced compensation and the amount was deposited in the Sub Court. The petitioner is mischievously submitting wrong facts to this Court with ulterior motive. The third respondent further submits that the possession of the land was taken over by the Special Tahsildar and handed over to TNHB. Now, the development work is going on. Therefore, there is no possibility for re-conveyance of the land to the writ petitioner. The third respondent further submits that the 4(1) notification was issued on 15.09.1991 and the Award amount was accepted by the petitioner without any protest. Therefore, the petitioner herein is challenging the acquisition proceedings in the belated stage. Therefore, the writ petition is liable to be dismissed for delay and laches. The third respondent further submits that the application filed by the petitioner for re-conveyance of land before the first respondent, as per the order of this Court in W.P.No.5957 of 2013, dated 12.03.2013, was rejected by the first respondent in letter No.7197/Ne.A-2(1)/13-6, dated 10.06.2013, after giving the valid reasons, viz., (i) The lay out had been approved by the Local Planning Authority, (ii) The Scheme proposal was also submitted by Board and approval was got, (iii) The tender has been settled, (iv) The work has commenced and nearing finishing stage in the said site. This was also accepted by the petitioner in para No.8 of his affidavit, (v) For the allotment of 76 developed plots, 1281 applications have been received and lot has to be conducted, (vi) the enhanced compensation awarded by the High Court was deposited on behalf of the individuals in the Sub Court. Hence, this respondent entreats the Court to dismiss the above writ petition.
8. The highly competent counsel Mr.A.R.L.Sundaresan appearing for the petitioner submits that the respondents had issued a notification under Section 4(1) of the Land Acquisition Act on 15.09.1991. Subsequently, declaration was published under 6 of the Old Act on 29.12.1992. Thereafter, the award No.5 of 1995 was passed on 05.01.1995 by the Land Acquisition Officer and the said lands were acquired from five others including the petitioner for the purpose of implementation of the Neighbourhood Housing Scheme by the Tamil Nadu Housing Board. One of the landowners had challenged the award passed by the respondents by way of writ petition in W.P.No.17433 of 1999 before this Court, on the ground that the Section 11 of the Old Act had not been followed. Subsequently, the writ petition was allowed on merits on 08.03.2000 and the award was set-aside by stating that the fourth respondent had not obtained approval from the Government for passing the award.
9. The highly competent senior counsel appearing for the petitioner further submits that an application was made by the petitioner to the Secretary to Government to drop the Land Acquisition Proceedings. However, the petitioner after having received the initial compensation, had subsequently sought for additional compensation. However, the physical possession of the lands were not taken from the petitioner and he is continuing to be in physical possession of the property and enjoying the same. The respondents had not implemented the said Scheme as of now. Thereafter, the petitioner made a representation on 15.10.2012, to the Government requesting to release the lands from the Land Acquisition Proceedings and also given an undertaking to deposit the compensation amounts which were received by the petitioner. The respondents did not take any decision on the said representation. Hence, the petitioner had filed a direction petition before this Court in W.P.No.5957 of 2013. This Court was pleased to direct the respondents to consider his representation regarding re-conveyance of the lands, but the same was not considered by the respondents. Hence, reminder was given to the respondents. Thereafter, contempt proceedings were initiated for not complying with the said order. Thereafter, the respondents had passed orders dated 10.06.2013 stating that the initial compensation was awarded and subsequently enhanced compensation was also paid as per the competent Court order. The highly competent senior counsel appearing for the petitioner further submits that thereafter, the respondents prepared a lay out and application forms had been called and contended that at the present stage when allotments are to be made, the request for re-conveyance cannot be considered.
10. The highly competent senior counsel appearing for the petitioner further submits that as on date no allotments have been made in favour of any third parties and it is only in the initial stage for processing the applications. Further, the acquisition proceedings had been initiated in the year 1991 and until now, the Neighbourhood Housing Scheme has not been implemented after a lapse of 23 years. Therefore, the purpose of the respondents for acquiring the land is not of paramount importance. Further, this Court had quashed the award No.5 of 1995, by this Court order dated 08.03.2000 passed in W.P.No.17433 of 1999. Thereafter, the respondents had not initiated any fresh proceedings for acquiring the said lands. Further, the respondents had not challenged the earlier order passed in the writ petition. As such, the respondents subsequent proceedings have become infructuous. The highly competent senior counsel additionally added that now the New Act is operating and as such, the petitioner is entitled to obtain remedy before this Court under Section 24(2) of the Act 30 of 2013. The highly competent senior counsel has cited the following judgments in support of his contentions:-
(i) STATE OF U.P. v. RAJIV GUPTA reported in (1994) 5 Supreme Court Cases 686 A. Land Acquisition Act, 1894 - S.11-A, Limitation period of two years for making an award mandatory - Proposed award made by the Land Acquisition Officer within the statutory period and communicated to the Commissioner for approval - No approval granted by the Commissioner within the statutory period - Held, entire proceedings lapsed - Such proposed award could not be treated as an award.
B. Land Acquisition Act, 1894 - S.11 - Award by Collector - Prior approval of the appropriate Government or its authorized officer mandatory."
(ii) Paramaraj T. v. State of Tamil Nadu reported in 1999 (III) CTC 715 "Land Acquisition Act 1894, Sections 6, and 11 - Limitation period for passing award - Proper approval of award by Government - Section 6 declaration published on 16.06.1993 - Award passed on 16.06.1995 - Award should have been passed within 2 years of publication of Section 6 declaration on or before 15.06.1995 - Award was passed beyond time - Award to be approved by Government of Tamil Nadu - Government authorized Commissioner of Land Administration and District Collector depending upon the quantum of compensation - Award not approved by competent authority authorized by Government but only by District Revenue Officer - Award set aside as beyond time and for want of approval by Government."
Hence, the highly competent counsel entreats the Court to allow the writ petition.
11. The highly competent Additional Advocate General Mr.S.Gomathinayagam appearing for the first and second respondents submits that the first respondent had issued a G.O. for acquiring the petitioner's land. On the request of the third respondent, the Land Acquisition Proceedings had been initiated under the Old Act for implementation of Neighbourhood Scheme for the welfare of the general public. Hence, a notification for acquiring the petitioner's land and the lands of five others was issued in the year 1991. After observing all the necessary legal formalities as per the Old Act, the lands to an extent of 5.63.50 hectares were acquired. Thereafter, an award had been passed. The landowner / petitioner has received the compensation amount. Thereafter, he also received enhanced compensation as per the order of the competent Court. Under these circumstances, the petitioner has misconceived the writ petition and seeking remedy which is not maintainable since the properties had been acquired by the first and second respondents and in turn, the same was assigned to the respondents 3 and 4 herein for implementation of the housing scheme. He further submits that the petitioner as an afterthought and after a long delay is approaching this Court. In support of his contentions, he has cited the following judgments:-
(i)Tukaram Kana Joshi v. MIDC reported in 2013(2) CTC 222 "Constitution of India, Articles 19, 21, 31 (omitted) & 300-A - Right to Property - Deprivation of, without following statutory procedure - Validity of - Appellants deprived of their land in 1964 when right to property was fundamental right - Futile efforts made by Appellants to claim their right - Appellants forced to file Writ Petition after two decades - Held, right to property today not only Constitutional right but also human right - Act of State in depriving Appellants of their immovable property, held amounts to encroachment in exercise of absolute power - Appellants discriminated against similarly placed persons, whose lands were also acquired - Constitutional protection available to citizens of country unfortunately not extended to Appellants - In such circumstances, respondents-authorities directed to notify properties of Appellants under Section 4 of 1894 Act within stipulated time and to issue Section 6 Declaration thereafter, followed by service of Notice under Section 9 in the stipulated time - Appellants, held entitled to pursue statutory remedy for further enhancement of compensation - Land Acquisition Act, 1894."
(ii) V.Chandrasekaran & another v. The Administrative Officer & Ors. reported in 2012 - 5 L.W.724 "Land Acquisition Act (1894), Sections 4,5,6,48/Vesting of land in State, Reconveyance, Scope of, Transfer of Property Act (1881), Section 41/Nemo dat quod non habet.
General Clauses Act (1897), Section 21/Vesting of land, reconveyance, Scope of, Practice / Filing of affidavit, inaccurate statement, Abuse of process of Court.
Appeal from Judgment in 2012 Writ L.R. 334 dismissed.
A person who purchases land subsequent to the issuance of a Section 4 notification is not competent to challenge the validity of the acquisition proceedings on any ground whatsoever.
Relief obtained by some persons, cannot be the basis for other persons who have belatedly filed their petition, to take the benefit of earlier relief provided.
Person interested has not filed objections in response to a notice issued under Section 5-A, and has not challenged the acquisition proceedings - Quashing of the declaration issued under Section 6 in some other case, would not enure any benefit to such person - Where a party has not filed objections to the notice issued under Section 5-A, the declaration quo such persons is neither quashed, nor does it stand vitiated qua him, by any error of law.
Proceedings cannot be withdrawn / abandoned under the provisions of Section 48 of the Act, or under Section 21 of the General Clauses Act, once the possession of the land has been taken and the land vests in the State, free from all encumbrances.
It is not the concern of the landowner, whether the land is being used for the purpose for which it was acquired or for any other purpose - He becomes persona non-grata once the land vests in the State.
In case the said land has been acquired for a Scheme, which does not fall within the ambit of public purpose then, it would not be a case of acquisition under the Act, instead, it would amount to colourable exercise of power.
Appellant have played fraud upon the authorities in order to obtain sanction.
A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the Court.
As the original vendors were not vested with any title over the said land, the transfer by them was itself void - All subsequent transfers would also remain unenforceable in law - Sale deeds executed would not confer any title on the appellants.
Whenever a person approaches a Court of Equity, it is expected that he will approach the said Court not only with clean hands but also with a clean mind, a clean heart and clean objectives.
Sale deeds in favour of the appellants are void and unenforceable."
Hence, the highly competent Additional Advocate General entreats the Court to dismiss the above writ petition.
12. The highly competent counsel Mr.S.Vanchinathan appearing for the third and fourth respondents submits that the petitioner's land comprised in Survey No.13/5 in Velisemmandalam Village, Cuddalore District along with 5 others lands to an extent of 5.63.50 hectares for implementing Neighbourhood Housing Scheme, has been acquired by the respondents 1 and 2. After the said lands were acquired after strictly adhering to the Old Act, award was also passed in the year 1995 and the award amount have been received by the landowners. As such, there is no lapse on the side of the respondents for acquiring the said land for the general public. The highly competent counsel submits that the respondents 1 and 2 after acquiring the said land have handed over the same to the respondents 3 and 4. Now, the respondents 3 and 4 have received applications for allotting plots to the general public. Now, the current position is that the Neighbourhood Scheme is almost implemented. If the above writ petition is allowed, the respondents and the general public will be put into hardship. Besides, the balance of convenience / social justice rests on the side of the respondents. Therefore, the above writ petition is not maintainable. Hence, the highly competent counsel entreats the Court to dismiss the above writ petition.
13. From the above discussions, this Court is of the view that:-
(i) The petitioner is having an extent of 0.13.50 hectares of land comprised in Survey No.13/5, Velisemmandalam Village, Cuddalore District, which has been classified as agricultural land. The cultivation cannot be shifted from one place to another place. At the same time, cultivation should not be disturbed or dismantled as it is of crucial and paramount importance to the welfare of the general public.
(ii) The implementation of Neighbourhood Scheme can be established from the available alternative sites especially from the Government lands. Therefore, the small farmer / writ petitioner who is depending upon the said lands for his livelihood through cultivation should not be disturbed.
(iii) So far, the respondents have not executed the scheme as on date. Besides, the respondents have not invested any large financial amount or engaged any manpower. Merely because the respondents have received applications from the public, it cannot be tantamount to a commitment. Further, there is no agreement between the respondents and the third parties to prove that the beneficiaries have been allotted house sites.
(iv) The respondents have paid the initial compensation of a sum of Rs.27,671/- . Subsequently, as the amount was inadequate, it was enhanced to Rs.2,33,363/-. But, this amount has not been paid to the petitioner so far. The act of the respondents clearly show that they do not have the intention in paying the additional compensation and this tantamounts to non payment of compensation. Besides, the petitioner is prepared to return the initial compensation amount with accrued interest thereon. Further, there is no documentary proof or any kind of advertisement through signboard etc., over the subject land to show that the respondents are in possession. As such, the petitioner is entitled to obtain relief under the New Act.
(v) At this stage, if the entire acquisition proceedings is set-aside, the respondents will not be prejudiced.
(vi) The Land Acquisition Proceedings has been initiated in the year 1991. After a lapse of 23 years, the purpose for which, the respondents had acquired the said lands for implementing the Neighbourhood Housing Scheme had not been executed. As such, the said purpose itself has become defunct.
(vii) The third respondent in his counter statement has stated that the layout has been approved by the Local Planning Authority and the tender has been settled. Further 76 developed plots are ready for allotment. This Court is of the view that the original notification had been issued in the year 1995 for neighbourhood scheme. As of now, the developed plots have not been allotted to any public individuals so far. Under the circumstances, considering the current prevailing position, if the acquired land is re-conveyed to the petitioner, the respondents will not be prejudiced, since the acquired land is lying vacant. Therefore, the petitioner is entitled for re-conveyance, after repaying the original award amount with permissible interest thereon.
14. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on all sides and on perusing the typed-set of papers and this Court's views mentioned above as (i) to (vii), this Court allows the writ petition. Consequently, the first respondent's proceedings in Letter No.7197/Ne.A.2(1)/13-6, dated 10.06.2013 is quashed. This Court directs the respondents to re-convey the land situated in Survey No.13/5 measuring an extent of 0.13.50 Hectares in Velisemmandalam Village, Cuddalore District to the petitioner herein.
15. In the result, the writ petition is allowed. There is no order as to costs. Consequently, connected miscellaneous petitions are closed.
22/12/ 2014
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Index : Yes.
Internet : Yes.
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To
1.The Secretary to Government,
Housing and Urban Development Department,
Secretariat, Chennai - 600 009.
2.The District Collector,
Cuddalore District,
Cuddalore.
3.The Chairman,
The Tamil Nadu Housing Board,
Nandanam, Chennai - 600 009.
4.The Executive Engineer & Administrative Officer,
Villupuram Housing Unit,
East Pondy Road, Maharahapuram,
Villupuram.
C.S.KARNAN, J.
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Pre Delivery Order made in
W.P.No.19089 of 2013
M.P.Nos.1 and 3 of 2013
22/12/2014
(4/6)