Madras High Court
S.R.Velusamy Gounder vs The State Of Tamil Nadu on 25 November, 2014
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25/11/2014
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
W.P.No.10712 of 2014 &
M.P.Nos.2 and 3 of 2014
S.R.Velusamy Gounder ... Petitioner
Vs.
1.The State of Tamil Nadu,
Rep. by its Secretary to Government,
Housing and Urban Development Department,
Fort St. George, Chennai - 600 009.
2.The Special Tahsildar,
Land Acquisition Neighbourhood Scheme,
Erode.
3.Erode Housing Unit,
Rep. by Chief Engineer and
Administrative Officer, N.H.B.Shopping Complex,
Surampatti, Erode. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorari, to call for the entire records relating to the impugned G.O.Ms.No.469, Housing and Urban Development Department, dated 13.05.1985 issued by the first respondent and quash the same, since as per U/s.24(2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), the entire acquisition proceedings became lapsed.
For Petitioner : Mr.C.Prakasam
For Respondents : Mr.M.S.Ramesh
Additional Government Pleader for R1 & R2
Mr.R.V.Babu (TNHB) for R3
- - -
CAV on 17/ 11/2014 and pronounced on /11 /2014
O R D E R
The short facts of the case are as follows:-
The petitioner submits that he has filed a writ petition in W.P.No.7330 of 1985, before this Court to issue writ of certiorari, calling for records relating to G.O.Ms.No.469, Housing and Urban Development Department, dated 13.09.1985 of the first respondent herein and quash the said notification in so far as it relates to the acquisition of lands in Sitharavuthanpalayam Village, Dharapuram of his lands comprised in Sitharavathanpalayam Village, Dharapuram Taluk comprised in S.No.386/2A, 386/2B of an extent of 2.25 acres and 0.93 hectares in that village. The above writ petition was admitted and stay of further proceedings was also granted by this Court. The petitioner further submits that in the meanwhile, before the writ petition in W.P.No.7330 of 1985 came on final disposal, the Government of Tamil Nadu has been granting exemption from acquisition to several adjacent landowners similarly placed. His counsel brought the above fact to the kind notice of this Court and submitted that certain adjacent lands have been withdrawn from the acquisition and that his lands may also be considered for similar exemption. Such exemption by the Government could not be granted even then, to the petitioner, as the writ petition was pending in this Court. The petitioner further submits that when the above writ petition in W.P.No.7330 of 1985 came up before this Court on 11.02.1994 along with another writ petition in W.P.No.8583 of 1985, this Court was pleased to pass the following observation:-
"The petitioner is directed to approach the Government for exemption of his land in the S.No.386/2A and 386/2B of an extent of 2.25 acres and 0.93 hectares in Sitharavuthampalayam Village, Dharapuram Taluk, Periyar District and consequent withdrawal / cancellation of the notification. If such an application was filed by the petitioner, the Government shall consider the same and pass appropriate orders on them keeping in mind, the exemption already granted to other adjacent landholders as evidenced by the letters, referred to in the order."
2. The petitioner additionally added that consequent to the above order passed by this Court, permitting him to make the application, he submitted the application to the authorities concerned, viz., the Chief Engineer and Administrative Officer, Erode Housing Unit, N.H.B.Shopping Complex, Erode on 22.04.1994, to which he received the reply dated 29.04.1994 stating that the said acquisition of land is not necessary at all and to that effect, "the recommendation has been forwarded" to the approval of the Government, the first respondent herein. The third respondent sent communication made in his proceedings No.2/1612/80, dated 29.04.1994 stating that the land is not required for Tamil Nadu Housing Board and to that effect made recommendations to the Government and awaiting for approval from the Government of Tamil Nadu. After receipt of the said communication, the petitioner has been waiting from the Government, but no orders have been received. The petitioner further submits that the Tamil Nadu Housing Board, who has been asked to send its recommendations with regard to exclusion of the lands in S.Nos.386/2A and 386/2B at Chithravuthampalayam Village, Dharapuam Taluk, Periyar District has also sent its report to the Government recommending for dropping the acquisition of the entire lands in Chithravuthampalayam Village, Dharapuram Taluk including lands covered in his writ petition. When the Government processed the said application, the first respondent herein forwarded the communication on 12.04.1995 stating that the second respondent also recommended for exclusion of his lands from the land acquisition proceedings.
3. The petitioner further submits that when the above recommendations was not considered by the first respondent, the petitioner approached this Court and filed writ petition in W.P.No.3230 of 1999 praying for to issue of a writ of mandamus, directing the first respondent to consider the recommendations of the third respondent dated 29.04.1994 and pass order of approval as recommended by the third respondent. The above writ petition in W.P.No.3230 of 1999 came up for final disposal on 09.03.1999 and this Court was pleased to pass the following order:-
" I directed the standing counsel for the Housing Board to ascertain the stage of the representation filed by the petitioner. Today, he represented that even though the Housing Board has sent their recommendation, the matter is pending before the first respondent. Hence, the first respondent is directed to consider the representation of the petitioner for the release of the land from the acquisition proceedings and pass suitable orders within four weeks from the date of receipt of production of the copy of this order. For the convenience purpose, the petitioner is directed to furnish a copy of his representation made earlier to the Government along with the copy of this order. The writ petitioner was disposed of in the above terms No costs."
Pursuant to the order stated above, the petitioner, in obedience to the direction of this court, sent all relevant papers to the first respondent herein with a request to consider the matter in the light of the direction of this Court and pass the favourable orders exempting the lands of the petitioner fromt he acquisition proceedings. The said letter was acknowledged by the first respondent on 17.03.1999 by registered post with acknowledgment due.
4. The petitioner further submits that even though more than three months have elapsed from the date of the order, the petitioner was not able to get the necessary order from the first respondent and hence he once again addressed a letter to the first respondent herein dated 16.06.1999 requesting him again to pass the order and to release the said lands from the acquisition proceedings and to enable the petitioner to take possession of the lands at an early date. The said letter was acknowledged by the first respondent on 17.06.1999 by Registered Post with Acknowledgment Due. He further submits that nearly two months have elapsed and in spite of it, the first respondent has neither sent any letter nor seems to have complied with the orders of this Court dated 09.03.1999 as stated above. The petitioner further submits that from the above facts and circumstances as stated above, it becomes very clear that the respondent seems to have scant regard and respect for the order of this Court and seems to have ignored the order in spite of his repeated requests made to him. The petitioner further submits that by the order dated 09.03.1999, this Court was pleased to pass the order directing the first respondent to consider the representation of the petitioner for the release of the land from the acquisition proceedings and pass suitable orders within four weeks from the date of receipt of production of the copy of this order. As stated above, nothing has happened and first respondent seems not to have cared for the order of this Court. Hence, he submits that he was forced to file the petition for contempt against the respondents. The petitioner further submits that even the undue delay in carrying out the orders of this Court amounts to contempt as laid down in AIR 1969 SC 189 (193). Here, in the proceedings, the first respondent has not cared for the order passed by this Court at all and it amounts to willful disobedience of the order under the provisions of Section 2(b) of the Contempt of Courts Act. Obviously the first respondent is fully aware of the order of this Court and well aware of the consequence and implication of the Court's order and hence, he submits that he should be considered to have virtually ignored the order and consequently his deliberate silence in spite of his various reminders to him, is willfull disobedience and deliberate disregard of the order dated 09.03.1999 in W.P.No.3230 of 1999.
5. The petitioner further submits that consequently, he filed an application No.392 of 1999 for contempt in disobeying the order of this Court and for a direction to the first respondent to consider his representation for release of the lands from the acquisition proceedings. The petitioner further submits that the above contempt application was being adjourned almost every month i.e., 17.09.1999, 24.09.1999 and finally on 08.10.1999 and at every hearing the learned Government Pleader has assured the Court that the order for approval of the Government for withdrawal of the lands would be passed even earlier than the time granted by this Court. Finally, when this application came on for final orders, this Court was pleased to pass the final order as follows:-
"The Contempt application has been filed on the ground that the respondents have not disposed of the representation of the petitioner in strict compliance of the order of this Court dated 09.03.1999 in W.P.No.3230 of 1999, wherein the respondents have been granted four weeks time to pass orders.
2. The learned Government Pleader represents, that the question of withdrawal of acquisition is not only concerned with the petitioner's land but also in respect of larger extent and already the proposal has been sent for approval and as soon as the proposal is approved necessary notification will be issued and the petitioner will be communicated about the same.
3. Considering the request of the Government Pleader, he is of the view that since already steps have been taken and it is under process, there is no need to proceed with the contempt application and the respondents can be given further time to comply with the orders of this Court.
4. Accordingly, the time granted in W.P.No.3239 of 1999 is extended by another six weeks from today to the respondents to dispose of the representation of the petitioner. The contempt application is closed with the above directions."
6. The petitioner further submits that when such orders have been passed by this Court and at every hearing the learned Government Pleader was assuring this Court, that the order and approval by the Government, will be passed as early as possible and when he was awaiting the order daily, a sudden conviction has come to him that the matter would be delayed for altogether a different reason and that reason cannot be applicable to the facts of the proceedings. The communication now issued, tells about the amount of compensation to be awarded and by which proceedings are pending which obviously does not apply at all to the proceedings, for the proceedings in which, he was prayed for exemption of the lands and which exemption has been declared by the concerned authorities and of the approval by the Government is awaited. He further submits that this is the reason, by which, the learned Government Pleader prayed for time at every hearing and as it is seen, no question of compensation is involved in his proceedings. Hence, the petitioner submits that the reason stated for the delay of the approval is not applicable at all. He further submits that a perusal of the communication will disclose that the reason is not at all relevant or pertinent. Under the above facts and circumstances, he was again compelled to file a second application for contempt of the order passed by this Court on 08.10.1999 and he has filed the above contempt application in Contempt Petition No.73 of 2000 for full and complete details. The petitioner further submits that when the above application came on for orders on 20.03.2000 before this Court, the learned Government Pleader produced a copy of the letter No.9205/N.A.3(1)/98-20, dated 16.03.2000 addressed to him, by the Secretary to Government, wherein he has been informed that it is not possible to release his lands from the acquisition. The petitioner further submits that in the said circumstances, he approached this Court and filed writ petition in W.P.No.7319 of 2000 challenging the order of the first respondent dated 16.03.2000. When the above writ petition came up before this Court on 23.09.2005, this Court was pleased to set-aside the order of the first respondent dated 16.03.2000 and excluded his lands from land acquisition proceedings, against which, the respondents 1 and 2 preferred appeal in W.A.No.775 of 2006.
7. The petitioner further submits that when the above writ appeal came up before this Court along with another Writ Appeal No.1589 of 2006 on 28.04.2008, this Court was pleased to set-aside the order passed in W.P.No.7319 of 2000 and the Writ Appeal was allowed, against which, the petitioner approached the Hon'ble Supreme Court and filed SLP (Civil Appeal Nos.19124 and 19125 of 2008). When the above matter came up before the Hon'ble Supreme Court on 03.04.2013, the Hon'ble Supreme Court dismissed the above SLP. Since the SLP was dismissed by the Hon'ble Supreme Court, he approached the Hon'ble Court and filed Review Petition No.182 of 2013 in W.A.No.775 of 2006 to review the order passed in W.A.No.775 of 2006, dated 28.04.2008. When the above matter came up before this Court along with Review Petition No.183 of 2013, on 06.01.2014, this Court was pleased to dismiss the above review petition. Against which, once again, the petitioner approached the Hon'ble Supreme Court and challenged the order of dismissal of Review Petition Nos.182 and 183 of 2013. The matters came up before the Hon'ble Supreme Court on 07.03.2014 and the Hon'ble Supreme Court dismissed the SLP. The petitioner further submits that at the time of hearing of dismissal of the above SLP, he came to know that the Hon'ble Supreme Court recently held and reported in 2014(1) CTC 755 that while the Hon'ble Supreme Court dealing with the new Land Acquisition Act called as Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has held that if the compensation is not paid and if the physical possession not taken from the landowner prior to five years to the New Act as per U/s.24(2) of the said New Act, the entire Land Acquisition Proceedings acquired in 1894 Act will become lapsed. Hence, as per the orders of Hon'ble Supreme Court, he is approaching this Court once again for redressal. The petitioner further submits that since the respondents have not disbursed the compensation amount to the petitioner and also when he verified with respondents office records, he came to understand that the compensation amount has not been deposited in the Court and in turn, he came to understand that no compensation amount is available in the Court deposit. Regarding the physical possession, the above said entire land is under his possession and now the said land has been let out by him to a school which is using it as a playground. The petitioner further submits that as per the above said judgment, the compensation has not been deposited and moreover physical possession not taken by the respondents. Hence, the entire land acquisition proceedings are lapsed as per the judgment delivered by the Hon'ble Supreme Court reported in 2014(1) CTC 755. The petitioner further submits that when the respondents had tried to take steps to take over possession, he along with the school authorities approached the civil Court and filed the suit in O.S.No.332 of 2013, on the file of the Sub Court, Dharapuram praying for restraining the respondents not to interfere with peaceful possession of the said school.
8. The second respondent has filed a counter statement and resisted the above writ petition. The respondent further submits that the Executive Engineer and Administrative Officer, Erode Housing Unit, Erode represented for Tamil Nadu Housing Board and based on its Resolution No.285, dated 12.10.1981 has applied for the acquisition of 336.30 acres of land in Chitravuthanpalyam Village, Dharapuram Taluk in his Ref.LAI/1612/80, dated 28.10.1981 for the construction of houses under LIG/MIG/HIG Scheme. An extent of 0.93.0 hectare in S.F.No.396/2A and 0.01.0 hectare in S.F.No.386/2B belonged to the petitioner are also included in the above 336.30 acres. The above area survey number is covered in Block No.XVI. The respondent further submits that the Government in their letter G.O.Ms.No.783, Housing and Urban Development Department dated 09.08.1982 have approved the draft notification under Section 4(1) of the Land Acquisition Act and it was published as Notification No.II (2)/HOU/4321/82 at page 9 of the supplement to part II Section 2 of the Tamil Nadu Government Gazette No.33A, dated 25.08.1982. The substance of the 4(1) notification in form-3 was published in the locality on 16.09.1982. Notices of enquiry for any objection under Section 5-A of the Land Acquisition Act were served on the landowners by way of affixture on the survey stones of the land on 20.09.1982, as the landowners were not available at Chitravuthanpalayam Village. The enquiry under Section 5(A) of the Act was conducted on 07.10.1982. The landowners neither appeared for the enquiry nor sent any requisition against the proposed acquisition. As no objections were received, the 5-A(2) proceedings were pronounced on 04.11.1982, recommending for declaration under Section 6 of the Land Acquisition Act. Originally, this case was dealt with by the Special Tahsildar (Land Acquisition), Neighbourhood Scheme, Erode till 05.09.1983 and subsequently by the Tahsildar (Land Acquisition), Neighbourhood Scheme, Dharapuram from 06.09.1983 onwards after its formation. The respondent further submits that the Government have approved the Draft Declaration under Section 6 of the Land Acquisition Act in G.O.Ms.No.469, Housing and Urban Development Department dated 13.05.1985 published in Tamil Nadu Government Gazette No.20 D on 22.05.1985 at Page 2 of Part II Section 2 (Supplement) of the Gazette as notification No.II(2)/HOU/2698/85. The Draft Declaration was also published in English Daily "The Hindu" on 25.05.1985 and in the Tamil Daily "Dina Thanthi" on 25.05.1985. The substance of the Draft Declaration was also published in the locality on 31.05.1985 and on 01.06.1985. The respondent further submits that the Draft Declaration under Section 7 of the Land Acquisition Act was approved in Govt.Lr.No.42182/S1/83-7, Housing and Urban Development Department dated 12.08.1985 and it was published at Page No.6 of the Tamil Nadu Government Gazette No.25-C, dated 26.06.1986 Part II, Section 2 (Supplement) as Notification No.II(2)/HOU/3328/85. The Amendment to Draft Declaration was approved in Govt.Lr.No.37754/S1/85-1, Housing and Urban Development Department dated 12.08.1985 and published in Tamil Nadu Government Gazette No.35-A dated 04.09.1985 Part II, Section 2 (Supplement) as Notification No.II(2)/HOU/4790/85.
9. The second respondent further submits that meanwhile, the petitioner / the landowner of S.F.No.386/2A and 386/2B Thiru.S.R.Velusamy had filed a writ petition in W.P.No.7330 of 1985 in the High Court, Madras for exemption of his land from acquisition. The High Court in the order in W.M.P.No.11061/85, dated 15.07.1985 and dated 11.04.1986 in W.P.No.7330 of 1985 have stayed all further proceedings relating to G.O.Ms.No.469, dated 13.05.1985 in respect of S.F.No.386/2A and 2B. Subsequently, the High Court of Judicature in their order in W.M.P.No.11061 of 1985 in W.P.No.7330 of 1985, dated 24.09.1987 has made the following order:-
"Interim stay granted already is made absolute as regards to dispossession and there will be no stay in other respects."
The respondent further submits that the award enquiry was posted to 03.09.1987. Notice under Section 9(1) and 10 of the Act were published on 04.08.1987. The notices under Section 9(3) and 10 of the Act were served to the landowners by Registered Post with Acknowledgment Due as they were not residing at Chithravuthanpalayam Village. The notices were received by the petitioner Thiru.S.R.Velusamy on 12.08.1987 and by Tmt.G.Vasantha Bai shares in R.S.No.386/2B on 10.08.1987. The award enquiy under Section 11 of the Act was conducted on 03.09.1987. On the day of enquiry, the petitioner, who is one of the landowners appeared in person and requested time upto 11.09.1987 for filing his written statement after consulting the lawyer. Tmt.Vasantha Bai and the other landowner also did not appear for Award enquiry but was represented by one Thiru.Vasanthakumar, B.A., B.L. and prayed a week's time for filing written statement of landowner. Hence, time was granted till 11.09.1987 for filing their written statement. In the written statement filed in person by the petitioner on 11.09.1987, it has been stated that the land acquisition proceedings may be kept pending till the orders of the writ petition pending before this Court filed by him and if the proceedings have to be taken, his lands should be paid at the rate of Rs.15,000/- per cent. Tmt.G.Vasantha Bai has filed a written statement through the counsel Thiru.Vasantha Kumar, B.A., B.L., on 08.09.1987. In that statement, it has been stated that she was awaiting for a fancy price for the disposal of the lands and planted a board in 1981 notifying the name as "Vasantha Nagar" and published an advertisement in Malai Malar on 18.08.1982 offering the land for sale for the purpose of constructing nursing home, cinema and factories houses etc. She claimed that her land is near Chenniappa Nagar, Rajendra Nagar etc., and the lands are being sold at Rs.10,000/- per cent and more, but in sale deeds, the value fixed for her lands is too low. Her land was valued at Rs.10,000/- per cent and paid to her. She accepted the value of the well fixed at Rs.5,863/- and she also accepted in the statement that her proposals for laying house sites has been turned down on the ground that there was proposal to acquire these lands for neighbourhood scheme. Finally, the award was passed by the Special Tahsildar (Land Acquisition) Dharapuram vide Award No.3/87, dated 04.03.1988. The necessary compensation amount of Rs.26,489.69 was deposited in Civil Court. Due to continuous writ petitions filed by the landowners in the High Court of Madras and the Hon'ble Supreme Court, the taking over of land possession by TNHB was delayed and finally after disposal of SLP (Civil Appeal Nos.19124 and 19125 of 2008) on 03.04.2013, the possession of said land was taken over by TNHB on 01.07.2013.
10. The respondent further submits that the petitioner had filed a writ petition in W.P.No.7330 of 1985 before this Court challenging the order under Section 6 of the Land Acquisition Proceedings relating to G.O.Ms.No.469, Housing and Urban Development Department dated 13.05.1985 in respect of S.F.No.386/2-A & 386/2-B measuring an extent of 0.93.0 Hectare and 0.01.0 Hectare (totally 0.94.0 Hectare) in Chittharavuthanpalayam Village, Dharapuram Taluk, Erode District now in Tiruppur District. This Court had stayed all further proceedings of Land Acquisition Act in the order in WMP.No.11061 of 1985, dated 15.07.1985 and 11.04.1986 in W.P.No.7330 of 1985. Subsequently, this Court in W.M.P.No.11061 of 1985 in W.P.No.7330 of 1985, dated 24.04.1987 had made the following order:-
"Interim stay granted already is made absolute as regards to dispossession and there will be no stay in other respects."
Hence, the Award enquiry under Section 11 of the Land Acquisition was conducted on 03.09.1987 and award was passed by the Special Tahsildar (Land Acquisition) Dharapuram vide Award No.3/87, dated 04.03.1988. The respondent further submits that this Court dismissed the writ petition in W.P.No.7330 of 1985, on 11.02.1994 with a direction to the petitioner to approach the Government for exemption of their lands in the respective survey Nos.386/2-A, 386/2-B in Chittharavuthanpalayam Village, Dharapuram Taluk. If such applications are filed by the petitioners, the Government shall consider the same and pass appropriate order on them, keeping in mind the exemption already granted to the other adjacent land owners vide Govt.Lr.No.15959-A/S1/88-5, dated 06.12.1988. The respondent further submits that as per the High Court direction, the petitioner made an application on 22.04.1994 to the Executive Engineer, Erode Housing Unit, TNHB, Erode. The third respondent herein has informed in his Lr.No.LA2/1612/80, dated 29.04.1994 the stage of exclusion of the petitioner land and action taken on the petitioner representation. It is not a final decision of the petitioner request. This Court issued a direction on 11.02.1994 to the petitioner to approach the first respondent for exemption of land from Acquisition. The decision of the Government is a final one. The final report has been sent to Government which is only vested with powers to include or exclude the lands covering the petitioner's land also. Since the petitioner's lands are absolutely required, the Government have now decided to acquire the said lands for which the land acquisition process has already been completed. In the meantime, the second and third respondents herein informed the subject matter to the petitioner regarding exclusion of his land are not a final one. The respondent further submits that as already stated in supra, the Government is a competent authority to take a final decision and accordingly based on the merits / keeping in mind the recent demand, survey from the public for houses, the State has decided to acquire the petitioner's lands as well as other remaining lands to the welfare of the society at large. The respondent further submits that the petitioner has often approached this Court and obtained directions to consider his representation for exemption of his lands under reference in W.P.No.3230/99, dated 09.03.1999 and since the fields in S.F.Nos.386/2B and 386/2B is required, sensing the growing demand from the public, the petitioner's request for exemption of lands could not be considered.
11. The respondent further submits that as already stated in supra, the Government is a competent authority vested with powers to include or exclude any lands based on the merits and as the petitioner's lands along with other adjacent lands are required for Housing Scheme, the Government has taken decision to take over the lands. The respondent further submits that the petitioner is beating round the same bush. As already stated in supra even though he made representations to the first respondent i.e, Government, the request for exemption of his land could not be considered as the Award has already been pronounced in Award No.3/87, dated 04.03.1988 and the Land Acquisition process have reached final stage. The respondent further submits that the first respondent has taken a final decision and sent a letter in reference 9205/LA. 3(1)/98-20 Housing and Urban Development Department dated 16.03.2000 to the petitioner. There is no willful disobedience and deliberate disregard as alleged by the petitioner. The respondent further submits that the first respondent has sent a communication to the petitioner after careful examination stating that since the lands are situated abutting main road and also as the writ petition against Land Acquisition has also been disposed of, the lands are required for Housing Scheme and negated the request the petitioner for exemption of this land. The respondent further submits that the petitioner has filed a second contempt application in 73 of 2000 before this Court and the petition was also disposed of on 20.03.2000. The respondent further submits that since the lands are absolutely required for formation of Housing Scheme, the request of the petitioner has been negated and rejected vide Government Lr.No.9205/LA. 3(1)/98-20 Housing and Urban Development Department, dated 16.03.2000. The respondent further submits that the petitioner filed W.P.No.7319 of 2000 before this Court challenging the order of the first respondent made in Lr.No.9205/LA/3(1)/98-20 dated 16.03.2000. This Court set-aside the above order of the first respondent dated 23.09.2005 and further, it is submitted tha the first respondent has taken a final decision and sent a letter to the petitioner in reference No. 9205/LA 3(1)/98-20 Housing and Urban Development Department dated 16.03.2000. The Government only is vested with powers to include or exclude the lands covering the petitioner's land also. Since the petitioner's land are absolutely required, the Government has now decided to acquire the said lands for which the land acquisition process has already been completed. The respondent further submits that the writ appeal in W.A.No.775 of 2006 is filed by the Government and the other writ appeal No.1558 of 2006 is filed by the Housing Board against the order dated 23.09.2005 passed by the learned Single Judge in W.P.No.7319 of 2000. The said writ appeals were allowed on 28.04.2008 for the reasons stated as follows:-
(a) The Land Acquisition Proceedings has been initiated under the Central Act Except Section 48-B introduced by the Tamil Nadu Amendment Act, there is no provision which empowers the person whose land has been sought to be acquired to make a request to the Government to exclude their land from the acquisition of the land. Of course, after issuance of Section 4(1) notification objections were called for under Section 5-A of the Land Acquisition Act, under which any person interested in the land under acquisition can make their objections in respect of the acquisition proceedings.
(b) In this case, notice of enquiry under Section 5-A of the Land Acquisition Act was served, on the landowners. The enquiry under Section 5-A of the Act was served on 07.10.1982. The landowners did not appear for enquiry nor sent any objection petition for the proposed acquisition. As no objections were received, the 5A(2) proceedings were pronounced on 04.11.1982 recommending for declaration. After following the due process i.e., issue of notice under Section 9 of the Act, enquiry has been conducted and award has also been passed as Award No.3 of 1987 on 04.03.1988.
(c) Without considering all the above issues, the learned Judge has proceeded with the cases as if the lands which were acquired are not necessary for the public purpose for which it was acquired and also of the view that as if the lands are not needed by the Government for any other public purpose and lying waste. On that basis, the learned Judge quashed the order impugned dated 16.03.2000.
(d) From the facts as stated above, the Bench is of the view that the approach of the learned Single Judge granting the relief under Section 48-B cannot be regarded as being in accordance with law. The circumstances under Section 48 can be invoked and the nature of the order passed under Section 48-B have been considered by the Division Bench of this Court in an elaborate fashion and has elucidated the law on the subject in the case of R.SHANMUGAM Vs. STATE OF TAMIL NADU reported in 2006(4) CTC 290, wherein also the very same Single Judge which was passed on the identical set of reasoning has been reversed and held that if the acquired land is not utilized by the Housing Board for housing or improvement scheme or for the purpose for which it was acquired the State Government, if satisfied may, forfeit the land as penalty and thereafter the land vests with Government free from all encumbrances and thereafter if the Government is satisfied that the land vested with them was not required for the purpose for which it was acquired or for any other public purpose, such land may be given to the original owner who is willing to pay the amount paid to him for acquisition of such land inclusive of the value referred to under Section 23-A and 2 of the Land Acquisition Act.
(e) No such situation is available in the facts of the case. Here is a case in which the land is acquired by the Government and on passing of the award it vests with the Government without any encumbrance as per statutory provision i.e., Section 11. Thereafter, the Government in order to complete the Scheme framed by the Housing Board transferred it to the Housing Board for the public purpose. In this case, the Housing Board still contends before this Court that the land of the writ petitioner is very much necessary for the purpose of accomplishing a public purpose for which it was acquired. When such is the stand and such is the factual position, the invocation of Section 48-B by no stretch of imagination can be regarded as being in accordance with law.
(f) For the foregoing reasons, the Bench is of the view that the order passed by the learned Single Judge has to be necessarily set-aside and the same is set-aside and the writ appeal is allowed. Further, the petitioner filed the SLP(C)No.19124-19125/2008 in the Hon'ble Supreme Court, against the order passed by this Court to exclude the lands from acquisition. The Hon'ble Supreme Court, dismissed the SLP(C) on 03.04.2013. The petitioner's land comprised in S.F.No.386/2A measuring an extent of 0.93.0 hectare and S.F.No.386/2B measuring an extent of 0.01.0 hectare were taken possession of by the Tamil Nadu Housing Board on 01.07.2013 from the Revenue Inspector, Office of the Thasildar, Dharapuram. The Tamil Nadu Housing Board has proposed to implement the Housing Scheme under self finance scheme in the above land taken possession of. The suitable lay out plan has been prepared for the construction of 5 HIG houses and 25 MIG houses. The lay out was approved by the Chief Engineer, Tamil Nadu Housing Board in T.P.No.27/2013. The scheme proposal to a value of Rs.791 lakhs has been approved by the Board in its Resolution No.4.02, dated 18.09.2013. The paper publication was made in Tamil and English dailies for applying for house. The total applications registered as on 20.11.2013 is 97 Nos. Out of which, number of HIG is 38 Nos., and MIG is 59 Nos., totally 97 Nos. from the public and both State and Central Government Staff. As such there will be a good demand for housing scheme in the above area. It is submitted that the petitioner again filed R.A.Nos.182 and 183 of 2013 in the Division Bench of this Court against the dismissal order of the Hon'ble Supreme Court. The above review applications were taken up for argument by the High Court on 06.01.2014 and the review applications were dismissed for the reasons that there are no valid grounds to entertain these review applications. Further, it is submitted that the petitioner again approached the Hon'ble Supreme Court and filed the SLP(Civil) Nos.5439-5440 of 2014 challenging the dismissal order of the above review applications. The Hon'ble Supreme Court again dismissed the above SLP on 07.03.2014. Now, the petitioner filed this writ petition before this Court to grant an order of interim injunction restraining the respondents from interfering with the petitioner's peaceful possession of the petitioner's land situated in S.F.Nos.386/2-A, 386/2-B to the extent of 2.25 acres and 0.93 hectares in Chittravuthanpalayam Village, Dharapuram Taluk, Tiruppur District.
12. The respondent further submits that the petitioner's land was acquired under Land Acquisition Act by the Special Tahsildar (LA) Housing Scheme during the period of 1988 vide award No.3/87, dated 04.03.1988. Necessary compensation amount of Rs.26,489.69 has been paid by the third respondent herein, who had sent a cheque No.21804 dated 11.06.1987 for Rs.28,870.85 vide his Lr.No.LAII/5295/85, dated 18.06.1987 and the same has been credited to the PD account of the second respondent herein in the challan No.286, dated 10.07.1987 of the State Bank of India, Dharapuram and further, it is submitted that the possession of the land was taken over by TNHB on 01.07.2013. Since the petitioner filed several writ petitions, review application and Special Leave Petitions in the High Court of Madras and Hon'ble Supreme Court, the taking over of possession of land and implementation of Housing Scheme by TNHB was delayed. The respondent further submits that the compensation amount of Rs.26,489.69 was deposited for the acquired petitioner's land in Chitharavuthanpalayam Village, Dharapuram at the time of passing of award. Further, it is submitted that the petitioner sold out his land to one of the school authority Thiru.V.S.N.Aruchamy on 28.11.2003 and he used this petitioner land as school playground in the name of Ponnu Matriculation School, Dharapuram. As the petitioner sold his land to one of the school authorities, after acquiring his land under Land Acquisition Act, it is illegal and contrary to Land Acquisition Act Rules and it is not a valid one. The respondent further submits that the petitioner's land was acquired under Land Acquisition Act and handed over to TNHB on 01.07.2013 by the Revenue Inspector, Dharapuram without any encumbrance and further, it is submitted that the Land Acquisition Proceedings are a valid one as on date. The respondent further submits that the petitioner's land was acquired under Land Acquisition Act and he made a sale transaction of his property to one school authority of Ponnu Matriculation School by violating the Land Acquisition Act Rules and further, it is submitted that the subsequent purchaser of school authority and petitioner filed an O.S.No.332 of 2013 and I.A.No.849 of 2013 in Sub Court, Dharapuram for restraining the respondent acquired property. The respondent further submits that the petitioner's land is proposed for the construction of 5 HIG and 25 MIG houses in the said subject land. Due to the continuous writ petition filed by the petitioner in various Courts, implementation of the scheme is delayed. The respondent further submits that after completion of all land acquisition proceedings, finally, award was passed by the Land Acquisition Officer and several writ petition filed by the landowners were disposed in favour to the Tamil Nadu Housing Board. In this stage, the filing of this writ petition by the petitioner challenging the Government Order in G.O.Ms.No.469, dated 13.05.1985 is not applicable and it is contrary to law.
13. The respondent further submits that the petitioner's land was acquired during the period of 1981 onwards and finally acquisition proceedings were completed by the Land Acquisition Officer during the period of 1988 vide award No.3/87, dated 04.03.1988 after making due compensation amount for the petitioner's land. The third respondent herein sent a cheque No.21804, dated 11.06.1987 for Rs.28,870.85 vide his Lr.No.LAII/5295/85, dated 18.06.1987 and the same has been credited to the PD account of the second respondent herein in the challan No.286, dated 10.07.1987 of the State Bank of India, Dharapuram. Due to several writ petitions filed by the petitioner in High Court, Hon'ble Supreme Court against the Land Acquisition Proceedings the taking over of possession of petitioner's land was delayed and finally it was taken possession of on 01.07.2013 after dismissal of the SLP filed by the petitioner in Hon'ble Supreme Court. Now, the petitioner's land is vested with TNHB. so, the Special Act of Rehabilitation and Resettlement Act 2013 (30 of 2013) is not applicable to this case. The respondent further submits that the petitioner's land in S.F.Nos.386/2-A, 386/2-B to an extent of 0.93.0 hectare and 0.01.0 hectare in Chitharavuthanpalayam Village, Dharapuram Taluk, Tiruppur District were acquired under Land Acquisition Act vide award No.3/87, dated 04.03.1988 after observing all usual formalities of Land Acquisition Act. After disposal of the SLP which was filed by the landowners in Hon'ble Supreme Court on 03.04.2013, the possession of the land was taken over by TNHB on 01.07.2013. The suitable layout lay out has been prepared for the construction of 5 HIG houses and 25 MIG houses. The lay out plan was approved by the Chief Engineer, TNHB in TP.No.27/2013. The scheme proposal to a value of Rs.791 lakhs has been approved by the Board through its Resolution No.4.02, dated 18.09.2013. The paper publication was made in Tamil and English dailies for applying for houses from the public. 97 applications were registered from the public. As such, there will be a good demand for Housing Scheme in the above said land. If this Court grants an order of interim injunction, the entire scheme will be defeated and public will be disappointed. Hence, the respondent entreats the Court to dismiss the above writ petition.
14. The highly competent counsel Mr.C.Prakasam appearing for the petitioner submits that the first respondent had issued a notification on 13.09.1985 for acquiring the petitioner's land comprised in Survey Nos.386/2A, 386/2B of an extent of 2.25 acres and 0.93 hectares in that Village and the same was challenged before this Court by way of writ petition in W.P.No.7330 of 1985.This Court was pleased to admit the writ petition and granted stay since a prima facie case had been made out. Finally, the above writ petition was disposed of by giving liberty to the respondents to give exemption for acquiring the said land. Accordingly, the respondents have withdrawn certain adjacent lands from the acquisition proceedings. However, the petitioner had not been granted similar relief, as such, the respondents have not treated the petitioner equally with the other adjacent landowners. As such, in the instant case, the respondents have committed discrepancy. Further, the petitioner was directed to approach the Government for exemption of his said land, but the same was not granted to the petitioner, after making necessary request petition, but the Chief Engineer, the third respondent herein forwarded his application with endorsement that the petitioner's land is not necessary at all to the first respondent, but the first respondent, has not considered the third respondent's recommendations. The highly competent counsel appearing for the petitioner further submits that the respondents had not taken the physical possession from the petitioner. Moreover, the compensation has not been paid to the petitioner and also the petitioner came to understand and verified with the Court records that the compensation has not been deposited at the Court. As such, the petitioner is entitled to receive relief under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013). Further, the respondents without paying compensation had attempted to interfere with the petitioner's property. Hence, the petitioner has approached the Sub Court, Dharapuram for injunction and declaration restraining the respondents from interfering with the peaceful possession of the property. Further, the said property is being used as a school playground. The highly competent counsel had annexed two photographs to prove that the said property is under the occupation of the school. As such, the subject land is absolutely not required for the respondents for their neighbourhood scheme. The initial notification had been issued in the year 1985 and as on date, the property is being used by the petitioner. Therefore the respondent's acquisition proceedings have become defunct, after lapse of around 28 years.
15. The highly competent counsel appearing for the petitioner further submits that the Administrative Officer, who is attached to the Erode Housing Unit had sent a communication to the Superintending Engineer, who is attached to the Tamil Nadu Housing Board at Salem dated 21.04.1994 and disclosed that the remaining acquired land has to be dropped from the acquisition proceedings. The Acquisition Officer himself, who is also competent authority, admitted in his proceedings that the petitioner's land is not required for the said purpose. Further, the Sub Court, Dharapuram, had enhanced the compensation for acquiring the said land per acre at Rs.4 Lakhs including 30% solatium and 12% interest thereon and it will come to approximately Rs.7.5 lakhs per acre. In view of the exorbitant rate fixed by the Sub Court, on enhanced compensation, the scheme may not solve the purpose for which, it was initiated. Further, the Chief Administrative Officer opined that if the remaining lands are required under compulsory acquisition at this high cost, it will not be economical either to the Housing Board or to the public and the very purpose of implementation of a house scheme will be defeated. Therefore, the Chief Administrative Officer recommended for exclusion from the acquisition as the framing of the scheme by acquiring these fields at the exorbitant cost will not be viable one. The Chief Executive Officer has mentioned survey numbers of the property and the area of the property in which, the petitioner's land is also included. On the recommendation of the Chief Administrative Officer, the Superintending Engineer, Salem Circle had also adopted the same and forwarded the same to the Managing Director, Tamil Nadu Housing Board for exclusion to the extent of 71.79 hectares. Now, as an after thought, the respondents, without paying compensation, have attempted to occupy the petitioner's land. The highly competent counsel appearing for the petitioner further submits that on the strength of recommendations made by the Chief Administrative Officer and the Superintending Engineer, the Chairman, Tamil Nadu Housing Board has passed a resolution on 27.04.1995 to withdraw the land acquisition proposal in respect of land measuring 71.79 hectares at Sithravuthanpalayam, Dharapuram Taluk. The said resolution passed on 27.04.1995 on the ground that the Sub Court, Dharapuram has enhanced the compensation at Rs.4 lakhs per acre as against the rate fixed by the Land Acquisition Officer at Rs.4,600/- per acre and the scheme would become uneconomical to proceed with at this high cost. As such, the respondent has totally dropped the plan for acquiring the land to an extent of 71.79 hectares out of the original proposal for acquiring land to an extent of 135.42.5 hectares of land in Sithravuthanpalayam, Dharapuram Taluk for implementing a housing scheme. The highly competent counsel further submits that the petitioner's land had not been taken by the respondents for the said purpose. Further, the District Collector and the Commissioner of Land Administration recommended for exclusion of certain lands from the acquisition in view of the existence of structures like houses, school, industries and approved layouts etc. In the instant case, the petitioner is using the land as a playground for school children as of now. Therefore, the petitioner's land has been excluded from the acquisition proceedings as per the recommendations made by the District Collector and Commissioner of Land Administration, who are the top most officials for deciding the acquisition proceedings.
16. The highly competent counsel appearing for the petitioner further submits that the respondents have initiated acquisition proceedings in the year 1985, but the same has not been fully completed since some of the lands have been excluded from the acquisition proceedings due to high cost consisting of land value as per the open market rate 30% of solatium and 12% interest, which has been fixed by the Sub Court, Dharapuram after conducting a full-fledged enquiry. Therefore, the respondents have dropped the acquisition proceedings partly including petitioner's land. The highly competent counsel further submits that the Administrative Officer / Executive Engineer had sent a communication to the petitioner on 29.04.1994 stating that the petitioner's land comprised in Survey Nos.386/2A and 386/2B at Sithravuthanpalayam, Dharapuram Taluk is not required for acquisition. The same communication was sent to the Government for approval. Therefore, it is a clear case that the petitioner's land has not been acquired by the respondents herein. The highly competent counsel has cited the following judgments in support of his contentions:-
(i) PUNE MUNICIPAL CORPN. V. HARAKCHAND MISIRMAL SOLANKI reported in (2014) 3 Supreme Court Cases 183 "A. Land Acquisition and Requisition - Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Ss.24(1) and (2) - Lapse of acquisition proceedings initiated under 1894 Act, where "compensation has not been paid to landowners" and award was made 5 years or more prior to commencement of 2013 Act - Expression "compensation has not been paid" occurring in S.24(2) "Paid" - Import of - Deposit of compensation amount in Government treasury, held, not enough - Held, for purposes of S.24(2) compensation shall be regarded as "paid" if compensation is actually tendered to landowners/interested persons, or, is offered to interested persons and their refusal to accept the same such compensation is deposited in Court.
- Expression "paid" used in S.24(2) includes deposit of compensation in Court, and cannot be limited to mean "offered" or "tendered" to landowners / persons interested, and neither can receipt of compensation by landowners/persons interested be inferred as the only meaning thereof - If literal construction is given to expression "paid", then it would amount to ignoring the procedure, mode and manner of deposit of compensation in Court as provided in S.31(2) of 1894 Act when landowners/interested persons refuse to accept compensation."
(ii) W.A.No.918 of 2010 (dated 03.04.2014):-
"20.The Award No.17/1994 came to be passed on 12.8.1994, and there is a clear indication in the said award, that the third respondent was very much conscious of the fact that the appellant and his brother have refused to receive the compensation and it was further stated that the compensation amount will be deposited by invoking Section 31(2) of the Central Act, 1894. The second respondent/Tamil Nadu Housing Board without any loss of time, has issued a cheque dated 2.2.1995, for a sum of Rs.1,79,53,793/-, which includes the compensation amount in respect of Award No.17/1994 dated 12.8.1994. The third respondent, after receipt of the said cheque, in turn, deposited the same to the credit of "Civil Deposit for works done for public bodies work deposit" on 16.2.1995; but, he fails to deposit the compensation amount in respect of Award No.17/1994, on the file of the then jurisdictional Court viz. Sub Court at Krishnagiri, by invoking Section 31(2) of the Central Act, 1894, and only pursuant to the interim order dated 27.9.2012, made in this writ appeal, the third respondent has withdrawn a sum of Rs.4,06,199/- from the credit of the above said Account and deposited the same on the file of the present jurisdictional Court viz. Sub Court at Hosur, on 29.10.2012, that too after the expiry of the time granted by this Court. It is to be noted that if extension of time was obtained from this Court and the amount was deposited prior to 1.1.2014, the provisions of Section 24(2) of Act 30 of 2013 may not apply and the appellant could have been denied of the relief. In the light of Section 24(2) of Central Act 30 of 2013 coupled with the above cited decision of the Hon'ble Supreme Court of India, though the award came to be passed five years or more prior to the commencement of the present Central Act 30 of 2013, which came into effect from 1.1.2014, the third respondent has not chosen to withdraw the compensation amount deposited by him to the credit of the said Account, and deposit the same on the file of the jurisdictional Sub Court on time.
21.In view of the above said subsequent development from 1.1.2014, this Court is of the view that the land acquisition proceedings initiated in respect of lands admeasuring 0.62.0 hectares in survey No.890/1B and 0.49.0 hectares in Survey No.889/1B, can be treated to be deemed to have lapsed. However, it is always open to the respondents to initiate proceedings afresh in terms of Central Act 30 of 2013 if the circumstances warrant so.
22.The contention of the State that in the earlier round of litigation, the appellant was denied relief and hence he is not entitled to indirectly challenge the proceeding cannot be countenanced as the challenge now made is for not depositing the compensation in the Court, which is in subsequent stage and by operation of law, the proceeding is deemed to be lapsed.
23.In the result, this writ appeal is allowed and the order dated 29.3.2010, made in W.P.No.13800/2008, is set aside and consequently, Section 4(1) Notification in G.O.Ms.No.850, Housing and Urban Development Department, dated 21.5.1991, and Section 6 Declaration in G.O.Ms.No.528, Housing and Urban Development Department, dated 12.8.1992, insofar as the land admeasuring to an extent 0.62.0 hectares in Survey No.890/1B, and the land admeasuring to an extent of 0.49.0 hectares in Survey No.889/1B, are deemed to have lapsed. However, the respondents are at liberty to initiate proceedings afresh in accordance with Central Act 30 of 2013. The respondents are permitted to withdraw the sum of Rs.4,06,199/- allegedly deposited, with accrued interest if any, in respect of Award No.17/1994. In the circumstances of the case, there shall be no order as to costs."
(iii) Raghbir Singh Sherawat v. State of Haryana reported in (2012) 1 Supreme Court Cases 792 "B. Land Acquisition Act, 1894 - Ss.4(1), 6(1), 11 and 16 - Vesting of acquired land in Government - Taking of possession - Mode of - Principles reiterated - Actual possession not symbolic / possession on paper - Land with standing crops - Revenue record showing possession taken and delivery of land on which there were standing crops - Inference of "actual possession" in absence of notice to landowners, whether can arise - Held, possession of acquired land had not been taken - As crops were standing on several parcels of land including appellant's land, possession could not have been taken without giving notice to landowners - State has not produced any other evidence to show that actual possession of land on which crops were standing had been taken after giving notice to appellant or that he was present at the site when possession of acquired land was delivered - Hence, record prepared by Revenue Authorities showing delivery of possession of acquired land to HSIIDC has no legal sanctity.
23. The respondents have not produced any other evidence to show that actual possession of the land, on which crop was standing, had been taken after giving notice to the appellant or that he was present at the site when possession of the acquired land was delivered to the Senior Manager of HSIIDC. Indeed, it is not even the case of the respondents that any independent witness was present at the time of taking possession of the acquired land."
(iv) PATASI DEVI v. STATE OF HARYANA reported in (2012) 9 Supreme Court Cases 503 A. Land Acquisition Act, 1894 - Ss.4, 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 i.e., date on which award was passed and 20.01.2010 i.e., 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 - Ss.4 and 6 - Challenge to acquisition on ground of colourable exercise of power - Evidence showing that though notifications issued under Ss.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."
17. The very competent Additional Government Pleader Mr.M.S.Ramesh appearing for the respondents 1 and 2 submits that as per the G.O. issued by the first respondent, the second respondent had initiated acquisition proceedings for forming neighbourhood scheme. The second respondent had duly completed an enquiry on various dates as per Section 5A of the Land Acquisition Act, 1894. Accordingly, the third respondent acquired a total extent of 135.42.5 hectares of land in Sithravuthanpalayam, Dharapuram Taluk, including the petitioner's land. After acquiring the said lands, the second respondent handed over the acquired land to the third respondent / Erode Housing Unit, who is the requisitioning body. The third respondent had constructed 240 houses and allotted to the beneficiaries. Further, the second respondent has constructed another 46 houses under various types and allotted to the beneficiaries. The third respondent, viz., Administrative Officer, who is attached to the Housing Board had recommended to the Government to exclude the petitioner's land from acquisition proceedings, but the same was not considered by the first respondent as of now. Under the situation, the petitioner's land cannot be discharged from the acquisition proceedings since the first respondent, who is the top most State Officer and competent authority had not accepted to drop the proposal partly. Further, the acquisition proceedings had been completed after observing all necessary legal formalities and also after paying of compensation to the petitioner. Now, the subject lands are under the custody of the Housing Board. Therefore, the relief sought for by the petitioner under Section 24(2) of the New Act is not maintainable. Hence, the highly competent counsel entreats the Court to dismiss the above writ petition.
18. The highly competent counsel Mr.R.V.Babu appearing for the third respondent submits that the third respondent had constructed houses and allotted the same to the beneficiaries. The said house have been constructed in the acquired land to an extent of 336.30 acres of land which included petitioner's land as well. The second respondent had duly observed all legal formalities, viz., 4(1) notification, Section 5-A enquiry, Section 6 declaration, approval of the acquired land and intimation to the owners and the payment of compensation. The petitioner had participated in the final enquiry and was also awarded. Further, the second respondent has acquired the entire land without committing any lapse in his proceedings. The petitioner's land is being required for the welfare of the society at large. The petitioner's land could not be excluded since an award has been passed on 04.03.1988 and the award No.3 of 1987 has been graned and as such, the Land Acquisition Proceedings have become final.
19. The highly competent counsel appearing for the third respondent submits that as per the notification dated 12.10.1981, the second respondent herein had acquired 336.30 acres of land in Sithravuthanpalayam, Dharapuram Taluk for the construction of houses in various types i.e. MIG, HIG and LIG. In the said Land Acquisition Proceedings, petitioner's land had been included. 4(1) of notification was issued on 12.10.1981. 5-A enquiry was conducted on 20.09.1982. Subsequently, a draft declaration was published on 13.05.1985. The Land Acquisition Proceedings had been approved by the Government and the same was published in the press media. Further, the petitioner had filed a writ petition before this Court and sought exemption for acquiring his property and the same was rejected after a comprehensive enquiry as per the specific direction of this Court. Further, the second respondent had acquired the said land and he in turn handed over the said property to the Housing Board for executing the neighbourhood scheme. Accordingly, the Housing Board had constructed many houses and allotted it to the beneficiaries. The petitioner had levelled several representations and filed several cases. Besides other adjacent landowners had also filed several cases before the various forums. Hence, the scheme had not been completed within the specified period. However, the Housing Board in particular is interested in executing the said neighbourhood scheme for the public at large. The compensation amount had been awarded by the second respondent and the same had been deposited at the Sub Court, Dharapuram, on various dates to the landowners including the petitioner. The petitioner's compensation amount of Rs.26,489.69 was deposited in the Sub Court, Dharapuram. As such, now, the third respondent is the owner of the property and they are in physical possession. Now the act of the petitioner in seeking remedy under the New Act, is only as an afterthought. Already the petitioner had attempted to seek relief before the various forums for getting exemption from acquisition proceedings, but it was in vain. Now, the act of the petitioner in initiating this writ proceedings is nothing but a renewed attempt. Hence, the highly competent counsel entreats the Court to dismiss the above writ petition.
20. From the above discussion, this Court is of the view that:-
(i) The petitioner herein had submitted two coloured photographs dated 23.01.2014, wherein, it is seen that the subject land of the petitioner is still vacant and the same is being used by school children as playground. Further, there is no proof that the subject matter of the property acquired by the second respondent herein / The Special Tahsildar, Land Acquisition, Neighbourhood Scheme has been handed over to the third respondent / Tamil Nadu Housing Board. It is also seen that there is neither name board nor security guard for the property to prove the allegations of the respondents that it is being used and occupied by the Housing Board.
(ii) The notification of acquiring the petitioner's land and other adjacent landowners property had been issued on 13.05.1985 and as of now, the subject land of the property is still vacant even after a lapse of 28 years. Therefore, the original plan of the Housing Board for formulating of a neighbourhood scheme has stood abated. This Court is of the view that the petitioner's civil rights over the said property has been disturbed.
(iii) There is neither any authenticated document regarding mode of compensation paid to the petitioner nor documentary proof and material evidence to prove that the property had been acquired and possession had been taken from the petitioner, after paying compensation. Therefore, the petitioner is entitled to receive relief under Section 24(2) of the New Act 30 of 2013. As such, the impugned G.O.Ms.No.469, Housing and Urban Development Department, dated 13.05.1985, issued by the first respondent herein for acquiring the petitioner's land and subsequent proceedings are quashed for the petitioner's land alone. As such, the petitioner's land is discharged from the acquisition proceedings.
(iv) On 21.04.1994, the Administrative Officer / Executive Engineer, who is attached to the Tamil Nadu Housing Board, Erode Housing Unit had issued a letter No.LAII/51/83 addressed to the Superintending Engineer, Tamil Nadu Housing Board, Salem stating that the Tamil Nadu Housing Board had taken possession of certain lands situated at Chitharavuthanpalayam Village and that out of the acquired property some remaining lands are to be dropped from the acquisition proceedings in which the petitioner's land is also included. It clearly proves that the petitioner's land is absolutely not required by the Tamil Nadu Housing Board / third respondent herein for implementing the housing scheme. Once the requisition body, viz., Tamil Nadu Hosing Board drops the acquiring the land from the acquisition proceedings, the land acquisition officer, viz., the Special Thasildar, Land Acquisition and the Secretary to Government, Housing and Urban Development Department have no locus standi for acquiring the lands from the petitioner. The Deputy Secretary, who is attached to the first respondent's office had sent a communication to the District Revenue Officer stating that the Government after careful examination and after careful consideration of the District Collector's recommendation and the recommendation of the Commissioner of Land Acquisition, had decided to exclude the land in Sithravuthanpalayam, Dharapuram Taluk and also requested the District Revenue Officer to take necessary action for cancelling the land acquisition notification and directed him to give publication in the Tamil Nadu Government Gazette and dailies. The same third respondent had sent a communication on 29.04.1994 in his letter No.LAII/1612/80 to the writ petitioner herein stating that the petitioner's land in Survey Nos.386/2A and 86/2B at Chitharavuthanpalayam Village is not required for acquisition to the Tamil Nadu Housing Board and the same was recommended to the Government. As such, the respondents cannot proceed with the acquisition proceedings or cannot attempt to occupy the petitioner's land property, for the said purpose viz., for the implementation of the neighbourhood scheme.
(v) The Superintending Engineer, who is attached to the Tamil Nadu Housing Board, Salem Circle had sent a letter No.SCE7/4398/87, dated 14.06.1994 addressed to the Managing Director, Tamil Nadu Housing Board, Chennai-35 and recommended for exclusion from the acquisition of 71.79 hectares including the petitioner's land on two grounds stating that the Sub Court, Dharapuram has enhanced the compensation amount for the acquired land which is many times more than the original award cost. This order has been passed in L.S.O.P.No.17/86, dated 30.04.1987. Another ground was that the demand for houses in Dharapuram Scheme is insufficient. Therefore the original purpose of the Housing Board for implementing the Neighbourhood Scheme has not been fulfilled and as such, the purpose has abated for the remaining lands.
(vi) On the basis of recommendation made by the Administrative Officer / Executive Engineer and the Superintending Engineer of the Tamil Ndu Housing Board, the Chairman, Tamil Nadu Housing Board, had passed a resolution No.8.01, dated 27.04.1995, wherein, the Board resolved to withdraw the Land Acquisition proposal in respect of land situated at Sithravuthanpalayam, Dharapuram Taluk, for the reason that the enhanced compensation land value awarded by the Sub Court, Dharapuam is exorbitantly high at Rs.4 lakhs per acre as against the land acquisition officer's rate of Rs.4,600/- per acre and the scheme would become uneconomical to proceed with at this high cost. It confirms that the requisition body, viz., Tamil Nadu Housing Board is not requiring the subject land for implementing the neighbourhood scheme. As such, the petitioner's land is discharged from the Land Acquisition Proceedings.
(vii) The Managing Director had sent a letter to the Secretary to Government, Housing Urban Development Department, Chennai-9 stating that the Tamil Nadu Housing Board had sent a final report for dropping of acquisition proceedings of entire lands in Sithravuthanpalayam, in which, the petitioner's land is also included. Therefore, it is evident that the requisition body consisting of the Administrative Officer, Superintending Officer, the Chairman and the Managing Director are not in requirement of the petitioner's property. Therefore, the respondents are not permitted to initiate any renewal attempt for acquiring the petitioner's land.
21. Considering the current factual position of the case and arguments advanced by the learned counsels on all sides and on perusing the typed set of papers and the views listed above as (i) to (vii), this Court is inclined to allow the above writ petition. Consequently, the Government order in G.O.Ms.No.469, Housing and Urban Development Department, dated 13.05.1985 issued by the first respondent is quashed since as per Section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), the entire land acquisition proceedings pertaining to the petitioner's land has become lapsed.
22. In the result, the writ petition is allowed. There is no order as to costs. Consequently, connected miscellaneous petitions are closed.
/ 11 / 2014
Index : Yes/No.
Internet : Yes/No.
r n s
To
1.The Secretary to Government,
Government of Tamil Nadu,
Housing and Urban Development Department,
Fort St. George, Chennai - 600 009.
2.The Special Tahsildar,
Land Acquisition Neighbourhood Scheme,
Erode.
3.The Chief Engineer and
Administrative Officer,
Erode Housing Unit,
N.H.B.Shopping Complex,
Surampatti, Erode.
C.S.KARNAN, J.
r n s
Pre Delivery Order made in
W.P.No.10712 of 2014 &
M.P.Nos.2 and 3 of 2014
25 /11/2014