Madras High Court
The Administrator General vs The State Of Tamil Nadu
Author: M.Dhandapani
Bench: M.Dhandapani
____________
W.P. Nos.16632-16633/2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
01.09.2022 14.09.2022
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NOS. 16632 & 16633 OF 2016
The Administrator General
& Official Trustee of Tamil Nadu
High Court, Chennai. .. Petitioner in both petitions
- Vs -
1. The State of Tamil Nadu
Rep. by its Secretary to Government
Housing & Urban Development Dept.
Fort St. George, Chennai 600 009.
2. The Chairman & Managing Director
Tamil Nadu Housing Board
Nandanam, Chennai 600 035.
3. The Special Tahsildar
Land Acquisition (VIII)
Tamil Nadu Housing Board Scheme
Nandanam, Chennai 600 035. .. Respondents in both
petitions
1
https://www.mhc.tn.gov.in/judis
____________
W.P. Nos.16632-16633/2016
W.P. No.16632 of 2016 filed under Article 226 of the Constitution of India
praying this Court to issue a writ of certiorari to call for the records of the 1st
respondent in letter No.21429/LA2(2)/2010-26 dated 02.02.2015 and quash the
same.
W.P. No.16633 of 2016 filed under Article 226 of the Constitution of India
praying this Court to issue a writ of declaration to declare the impugned land
acquisition proceedings acquiring the lands belonging to the Petitioner Trust in S.
No.2930/1, 2930/2, 2931 and 2932/1 in Purasawalkkam Village, Purasawalkam-
Perambur Taluk, Madras District, measuring an extent of 103 grounds under 4 (1)
Notification dated 30.10.1985 under the 1894 Act published in the Tamil Nadu
Gazette No.42-C and consequently by declaration u/s 6 of the 1894 Act published
in the extraordinary issue of Tamil Nadu Gazette No.756 dated 22.12.1986 (or)
Award No.2/88 dated 22.12.1988 has lapsed and become non-est in law.
For Petitioners : Mr.M.Dhamodharan
For Respondents : Mr. N.R.Elango, SC, assisted by
Mr. G.Krishnaraja, AGP for R-1
Mr. P.Kumaresan, AAG, assisted by
Mr. A.M.Ravindranath Jeyapal for RR-2 & 3
COMMON ORDER
2 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 Assailing the acquisition of lands belonging to the petitioner-Trust under the Land Acquisition Act, 1894 (for short ‘Act, 1894’) and seeking quashment of the same on the ground of the acquisition proceedings having lapsed in view of Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition Act, 2013 (for short ‘Act, 2013’), the present petition has been filed.
2. It is the case of the petitioner that the lands, which are covered under S. Nos.2930/1, 2930/2, 2931 and 2932/1 in Purasawalkkam Village, Purasawalkkam–Perambur Taluk, were originally purchased by C.Kandasamy Naidu vide sale deed dated 20.08.1941. It is further averred that the said Kandasamy Naidu executed a Will on 21.5.1948 creating a Trust and nominating the petitioner herein as the Executor and Trustee of the Will, which was also registered. The petitioner was put in possession of certain properties, which included the aforesaid lands as well and subsequent to the demise of Kandasamy Naidu, the petitioner applied for probate of the Will by filing O.P. No.278/1948 and accordingly, this Court, vide order dated 5.10.1948 granted probate of the Will and pursuant to the same, the petitioner had paid the requisite tax to the Government and had also entered into lease with various third parties. 3 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016
3. It is the further averment of the petitioner that the 1st respondent had issued the impugned G.O. Ms. No.1056 dated 11.10.1985 u/s 4 (1) of Act, 1894 approving the draft notification for acquisition of lands, which included the aforesaid subject lands for implementation of the Housing Scheme by the 2nd respondent Notification u/s 4 (1) was published on 30.10.1985, but the petitioner’s name was not reflected in the said notification, though the subject lands were under the control and possession of the petitioner. It is the further averment of the petitioner that the petitioner participated in the enquiry u/s 5-A and submitted objections, which were rejected by the 3rd respondent vide order dated 26.8.1986 and draft Declaration u/s 6 of the Act, 1894 was published on 22.12.1986.
4. It is the further case of the petitioner that award enquiry was conducted and award No.2/88 was passed on 22.12.1988 and a sum of Rs.45,64,024.10 was computed as compensation, which was deposited with the Reserve Bank of India in a non-interest bearing account, though the law requires the compensation to be paid to the person entitled to the same. The 2nd respondent deposited the 4 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 same with the Reserve Bank of India on the ground that ownership with regard to the lands had not been property established by the petitioner inspite of the petitioner submitting the order relating to Probate of the Will dated 5.10.1948. It is the further averment of the petitioner that application was filed by the petitioner for reference u/s 18 of Act, 1894, for enhancement of compensation and inspite of repeated reminders reference was not made and the 2nd respondent had also not taken possession of the subject lands.
5. It is the further case of the petitioner that the 2nd respondent having not taken possession of the subject lands, the petitioner filed Application No.2453/1995 in O.P. No.278/1948 to sell certain lands belonging to the petitioner, which were lying along with the subject lands and this Court, vide order dated 29.7.05 permitted the petitioner to take appropriate proceedings against the 2nd respondent for reconveyance of the subject lands. The petitioner, therefore submitted representation dated 12.08.05 before the 1st respondent and in the absence of any order, filed W.P. No.37212/05 before this Court in which this Court, vide order dated 18.11.05, directed the 1st respondent to consider the petitioner’s representation and pass orders, pursuant to which the petitioner 5 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 submitted another representation dated 29.11.05 for deletion of the subject lands from the acquisition.
6. It is the further averment of the petitioner that vide proceedings dated 11.9.06, the 1st respondent rejected the request of the petitioner for reconveyance, which was challenged by filing W.P. No.10475/07 in which this Court, while setting aside the impugned proceedings dated 11.09.06, directed the 1st respondent to reconvey the subject lands to the petitioner, which order was challenged before the Hon’ble Apex Court by the 2nd respondent by filing SLP (C) No.12321 and 12943/08. Pending the said petition, the Hon’ble Apex Court directed the release of compensation amount due to the interested parties. However, inspite of the specific direction, the 3rd respondent had deposited the amount of Rs.45,64,024/- in the City Civil Court alleging that the land owners are yet to be identified and the respondents also filed LAOP No.40/2012 u/s 30 and 31 of Act, 1894, for adjudicating apportionment of compensation, which is pending.
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7. It is the further averment of the petitioner that the Hon’ble Apex Court, vide order dated 28.10.2014, while allowed the appeal of the respondents, however, granted liberty to the petitioner to furnish particulars of its ownership in respect of the subject lands and also directed the 1 st respondent to reconsider the claim of the petitioner for reconveyance of the subject lands and further held that it shall be open to the petitioner to support its claim for reconveyance of the subject lands by placing reliance upon any other provisions of law. It is the further averment of the petitioner that even before the Hon’ble Apex Court, it has been the admitted case of the respondents that it had taken only paper possession of the subject lands and that the 1st respondent had no documents to show that the 1st respondent had completed the acquisition proceedings by taking over possession as contemplated under law.
8. It is the further averment of petitioner that pending the passing of the order by the Hon’ble Apex Court in C.A. No.9942/14, Act, 2013 had been come into force, which, u/s 24 (2) provides that in the absence of the compensation being paid or lands having been taken possession, the entire land acquisition proceeding would stand lapsed. Therefore, the petitioner submitted a 7 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 representation dated 26.12.2014 to the respondents to declare the land acquisition proceedings as having lapsed and to reconvey the lands back to the petitioner, as the lands were still in possession of the petitioner as the respondents had not taken possession of the lands as contemplated under law.
9. It is the further averment of the petitioner that vide the impugned proceedings dated 2.2.15, the 1st respondent rejected the above mentioned request of the petitioner inspite of the petitioner providing additional documents to show title of the petitioner over the subject lands. It is the further averment of the petitioner that even in the impugned proceedings the 1st respondent has accepted that mere paper possession has been effected for handing over of the lands by the 1st respondent to the 2nd respondent, which has no legal sanctity. Further, the respondents have also not proved passing of compensation to the petitioner nor produced any panchanama to show possession having been taken over. The inaction of the respondents squarely attract the provisions of Section 24 (2) of Act, 2013 and, therefore, the entire acquisition proceedings stands lapsed. Therefore, the present petitions have been filed to quash the impugned order seeking reconveyance and also that the acquisition proceedings have 8 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 lapsed in view of the conditions specified u/s 24 (2) of Act, 2013 having not been satisfied.
10. Learned counsel appearing for the petitioner submitted that the title of the petitioner to the property stands proved by the order of probate of the Will by this Court in O.P. No.278/1948. Once this Court has recognized the title of the petitioner over the subject lands, the respondents are bound to accept the title of the petitioner and it is not open to the respondents to dispute the title when no appeal has been filed against the said order of probate.
11. It is the further submission of the learned counsel that the probate having been granted as early as in the year 1948, the acquisition proceedings have been taken up only in the year 1985, even the non-inclusion of the petitioner’s name in the notification u/s 4 (1) of Act, 1894, renders the acquisition bad. It is the further submission of the learned counsel for the petitioner that though the petitioner partook in the enquiry u/s 5-A and produced the relevant records, the same have not been considered in proper light, but has been summarily rejected.
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12. It is the further submission of the learned counsel that though award was passed in the year 1988, till date the petitioner has not been paid the compensation amount. The respondents have not offered the compensation to the petitioner and without offering the compensation mere deposit of the compensation amount in the Reserve Bank would not fulfill the prescription made u/s 31 of Act, 1894. It is the further submission of the learned counsel that even if the petitioner does not consent to receive it, the proper course open to the respondents is to deposit the compensation before the appropriate court and making a deposit in the Reserve Bank of India would not satisfy the condition prescribed u/s 31 (2) of Act, 1894.
13. It is the further submission of the learned counsel that though delay in payment of compensation would not entail reconveyance of the land to the petitioner, however, non-payment of compensation inspite of coming into force of Act, 2013, would result in the acquisition proceedings getting lapsed in view of Section 24 (2). It is the submission of the learned counsel that no material has been placed by the respondents to show that possession of land has been taken 10 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 in the manner known to law. It is the submission of the learned counsel that even it is the admitted case of the respondents before the Hon’ble Apex Court that possession has not been taken and it is only paper possession and no panchanama has been filed to show take-over of possession. Further, the compensation has not been paid to the petitioner and the twin prescription prescribed u/s 24 (2) of the Act, 2013 having not been complied with, the decision of the Constitution Bench of the Hon’ble Apex Court in the case of Indore Development Authority – Vs – Manoharlal & Ors. (2020 (8) SCC 129).
14. It is the further submission of the learned counsel that the representation of the petitioner has not been considered by the respondents in the light of the aforesaid decision in Indore Development Authority case (supra), which clearly shows non-application of mind on the part of the respondents. It is the further submission of the learned counsel that the subject lands were allegedly acquired for the purpose of Housing Scheme development of the 2nd respondent in the year 1985, which has not fructified till date, as possession of the subject lands is still with the petitioner and that being the case, not only the acquisition gets frustrated due to long passage of time, but the acquisition also 11 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 gets lapsed in view of Section 24 (2) of Act, 2013 and, therefore, the present acquisition deserves to be interfered with and the subject lands restored back to the petitioner.
15. Per contra, learned senior counsel appearing for the 1 st respondent submitted that pursuant to the award No.2/88 dated 22.12.88, possession of the land was taken over by the 2nd respondent on 28.10.1999 from the 3rd respondent and since then the land vested with the 2nd respondent. It is the further submission of the learned senior counsel that compensation has already been deposited in the City Civil Court vide cheque dated 31.8.2012 in LAOP No.40/2012. That being the case, both the conditions mandated u/s 24 (2) of Act, 2013, having been satisfied, the acquisition proceedings would not lapse.
16. It is the further submission of the learned senior counsel that only due to dispute over the title, the entire compensation amount was deposited, as the registered holders of the land, as per the award are different but the petitioner claims the same on the basis of a Will alleged to have been executed by Kandasamy Naidu.
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17. It is the further submission of the learned senior counsel that the lands having been acquired for a public purpose, even if the same is not utilized, non- utilisation of the land would not grant any lien to the landholders to claim reconveyance of the land u/s 48-B and the Courts, if at all, can direct the landholders to approach the Government for reconveyance and cannot direct any reconveyance. Further, it is submitted that even if a portion of the land is not utilized, the same need not be given to the landholders, but could be sold in an open public auction and the proceeds utilized for public purpose.
18. It is the further submission of the learned senior counsel that the rejection of the representation by the 1st respondent is on account of the fact that the 2nd respondent had, by its resolution, decided to utilize the land for framing a scheme for general public and that being the case, the 1st respondent has rightly rejected the representation, which cannot be said to be perverse.
19. Learned Addl. Advocate General appearing for the 2nd respondent, while concurring with the submissions advanced by the learned senior counsel, 13 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 further submitted that the petitioner, during the award enquiry had not produced any documentary evidence to support its claim of ownership and title over the subject lands. Therefore, in the absence of clear title to the subject lands, the award as passed and the compensation was deposited in the City Civil Court on 31.8.2012. The rejection of the representation is on the basis of careful consideration and there is no infirmity with the said order and possession having been taken and compensation having been paid, Section 24 (2) of Act, 2013 would not stand attracted to the case on hand and, accordingly, prays for dismissal of the writ petition.
20. This Court gave its careful consideration to the submissions advanced by the learned counsel appearing on either side and perused the materials available on record.
21. The undisputed facts, which emerge from the present petition are that a Will was executed by one Kandasamy Naidu on 21.5.1948 creating a Trust and nominating the petitioner herein as the Executor and Trustee of the Will, which was also registered and the petitioner applied for probate of the Will by filing 14 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 O.P. No.278/1948 and accordingly, this Court, vide order dated 5.10.1948 granted probate of the Will. This makes it abundantly clear that on the basis of the probate granted by this Court, the petitioner becomes the owner of the subject lands as also the executor of the Will.
22. It is also admitted that land acquisition proceedings were initiated by publication of notification u/s 4 (1) on 30.10.1985, but the petitioner’s name was not reflected in the said notification, though the subject lands were under the control and possession of the petitioner. It is the case of the respondents that during the enquiry u/s 5-A, notice was issued to the registered owners, who appeared before the enquiry officer and equally the petitioner also appeared before the enquiry officer and submitted material documents to show ownership over the subject lands. But the enquiry officer rejected the claim of the petitioner and award was passed in the year 1988 in Award No.2/1988. It is the claim of the respondents that the award revealed that there is dispute with regard to ownership and, therefore, compensation was deposited in the City Civil Court.
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23. Even as per the version of the respondents, the award was passed on 22.12.1988 and it is alleged that possession was taken on 28.10.1999. Yet, the respondents admit that compensation was deposited vide cheque dated 31.8.2012 in LAOP No.40/2012. It is clear from the above that since 1988, when the award was passed till 2012, almost for 23 years the amount has not been deposited.
24. A perusal of the order of the Hon’ble Supreme Court in SLP (C) No.12321/08 dated 4.10.2010 reveals that it has been submitted that compensation amount has been deposited with Reserve Bank of India which may be released to the respondents with interest. The parties to the said lis are the parties before this Court. Therein, the learned Attorney General had made the said representation across the Bar, which has been accepted by the Hon’ble Supreme Court. Such being the case, it does not lie in the mouth of the respondents to claim that there is dispute with regard to ownership and title and, therefore, the compensation could not be released and, therefore, it was deposited with the City Civil Court in LAOP No.40/2012 on 31.8.2012. To escape from the clutches of law, the respondents, for the first time, has thought 16 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 innovatively and have brought in the dispute with regard to ownership of the subject lands.
25. It is but necessary to have a look at Section 31 of Act, 1894, which pertains to deposit of compensation and for better appreciation, the same is quoted hereunder :-
“31. Payment of compensation or deposit of same in Court :
(1) On making an award under section 11, the collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section. (2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation of the Court to which a reference under section 18 would be submitted;
Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount.
17 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18;
Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.
(3) Notwithstanding anything in this section, the Collector may, with the sanction of Provincial Government instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interest of the parties concerned.
(4) Nothing in the last foregoing sub-section shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof.” (Emphasis Supplied)
26. Section 31 clearly stipulates that on the passing of the award, the Collector shall tender the compensation to the persons interested in the said land, however, the said amount has not been paid to the petitioner, as person 18 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 interested, as the petitioner was armed with the probate granted by this Court in O.P. No.278/1948 way back in the year 1948 itself, which has not been challenged in the manner known to law and, therefore, on the passing of the award in the year 1988, almost four decades have passed by without the said order being put to challenge. That being the undisputed material available on record, it was incumbent upon the respondents to have paid the compensation to the petitioner and in the event of the petitioner not receiving the compensation, then the respondents, u/s 31 (2) could have referred the matter to the City Civil Court, even on the aspect of apportionment u/s 30 of Act, 1894. But the respondents have not made such deposit and reference to the Court, but had gone before the Hon’ble Supreme Court and accepted that the amount could be paid to the petitioner. Such being the case, the respondents cannot come before this Court and lay a different claim to the one what they have already placed before the Hon’ble Supreme Court.
27. Further, the order of the Hon’ble Supreme Court against the order passed by the Division Bench in Civil Appeal No.9942 of 2014 reveals that the petitioner had not placed any material before the State Government with regard 19 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 to its ownership and in such circumstances, the Hon’ble Supreme Court had granted liberty to the petitioner to place the requisite papers before the 1st respondent to prove its ownership and based on the same the respondents herein were directed to consider the claim of reconveyance u/s 48-B of Act, 1894.
28. It is to be pointed out at this juncture that probate has been granted by this Court in O.P. No.278/1948, thereby, the subject lands were held by the petitioner as trustee to carry out the conditions put forth in the Will executed by Kandasamy Naidu. As aforesaid, no one has challenged the probate granted, which has been allowed to survive for more than four decades and it is still surviving. Such being the case, when probate proceedings have ended in favour of the petitioner under the orders of this Court, this Court having affirmed the charge of the petitioner over the subject lands, as its trustee to carry out the prescriptions of the testator, without it being challenged in a manner known to law, and further when the Hon’ble Supreme Court has granted liberty to the petitioner to produce the requisite documents to establish its ownership over the subject lands, which has been complied with by filing representation dated 26.12.2014, it is incumbent on the respondents to have accepted the order of this 20 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 Court and released atleast the compensation amount to the petitioner, but the respondents have gone overboard and not paid the compensation to the petitioner and yet have the temerity to come before this Court and claim that there is dispute with regard to ownership of the subject property, thereby, taking a contemptuous stand and making a mockery of the orders passed by this Court.
29. In the light of the aforestated position, the compensation that ought to have been paid to the petitioner having not been paid, one of the limb of Section 24 (2) of Act, 2013 has not been satisfied, as by the time the order was passed by the Hon’ble Supreme Court, Act, 2013, having come into force and necessarily the twin conditions imposed u/s 24 (2) requires to be complied with.
30. The other limb of Section 24 (2) pertains to taking possession of the subject lands. It is claimed by the petitioner that till date possession has not been taken in the manner known to law and only paper possession has been taken, which cannot be treated to be possession in the eye of law and, therefore, the second limb of Section 24 (2) is not satisfied.
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31. With regard to the aforesaid contention, a perusal of the order impugned herein reveals that while the petitioner claims possession at its hands, it has been the stand of the 2nd respondent, as recorded by the 1st respondent that paper possession of the lands was taken over on 28.10.1999. However, actual possession of land has not been taken and panchanama to the effect that possession of subject land has been taken has not been filed by the respondents. When the 2nd respondent itself has accepted that only paper possession has been taken and actual possession has not been taken, which is also evident from the impugned order, this Court is of the considered view the possession has not been taken over in the manner contemplated under law and, therefore, the prescription provided u/s 24 (2) of Act, 2013 cannot be said to have been completed.
32. In this backdrop, the decision of the Hon’ble Apex Court in Indore Development Authority case (supra) assumes significance, wherein, the Hon’ble Supreme Court has held as under :-
“366. In view of the aforesaid discussion, we answer the questions as under:22
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1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1.1.2014 the date of commencement of Act of 2013, there is no lapse of proceedings. Compensation has to be determined under the provisions of Act of 2013.
2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the Act of 2013 under the Act of 1894 as if it has not been repealed.
3. The word or used in Section 24(2) between possession and compensation has to be read as nor or as and. The deemed lapse of land acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.
4. The expression 'paid' in the main part of Section 24(2) of the Act of 2013 does not include a deposit of compensation in court.
The consequence of non-deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the Act of 1894 shall be entitled to compensation in accordance with the 23 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 provisions of the Act of 2013. In case the obligation under Section 31 of the Land Acquisition Act of 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non- deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the Act of 2013 has to be paid to the "landowners" as on the date of notification for land acquisition under Section 4 of the Act of 1894.
5. In case a person has been tendered the compensation as provided under Section 31(1) of the Act of 1894, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Act of 2013.
6. The proviso to Section 24(2) of the Act of 2013 is to be treated as part of Section 24(2) not part of Section 24(1)(b).
7. The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/ memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as 24 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 once possession has been taken there is no lapse under Section 24(2).
8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.
9. Section 24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013, i.e., 1.1.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.” (Emphasis Supplied)
33. The Hon’ble Supreme Court in the aforesaid decision has categorically held that deemed lapse of land acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not 25 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse. From the above, it is evident that there should be satisfaction of either of the limbs of the acquisition proceedings, viz., either taking of possession or payment of compensation in which circumstances, the acquisition proceedings would not get lapsed.
34. The Hon’ble Supreme Court has also further held that the obligation to pay is complete by tendering the amount under Section 31 (1). From the above, it is clear that tendering of compensation to the land owners is mandatory and only in the event of the land owners not ready to receive the compensation and seek enhancement, compensation can be deposited. Further, provisio appended to Section 31 (2) provides that land owners, who receive the compensation under protest alone can seek reference for enhancement. It is the case of the petitioner that it appeared for the enquiry and sought higher compensation, which has not been disputed by the respondents. However, no material whatsoever has been placed before this Court to show that compensation was tendered, which was not 26 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 received by the petitioner, which resulted in the deposit of the amount in Court. Further, even according to the respondents, the amount was initially deposited only in the Reserve Bank of India, which is evident from the order of the Hon’ble Supreme Court, where, in the appeal, the learned Attorney General had made a categorical submission that the amount in deposit in the Reserve Bank of India may be given to the petitioner along with interest. Therefore it is evident that the compensation amount was not tendered to the petitioner, but was only deposited and even thereafter, upon the orders of the Hon’ble Supreme Court, the amount was not tendered to the petitioner, but was deposited.
35. Further, it is to be pointed out that no where it is the case of the respondents that they tendered the amount to the petitioner, which the petitioner refused to receive, which resulted in the deposit of the same before the Court. After the orders of the Hon’ble Supreme Court in SLP (C) No.12321/08, dated 4.10.2010, the respondents have, after a further lapse of two years, made the deposit in Court in LAOP No.40/12 on 31.8.2012. Therefore, from the date of award till the date of its deposit, its not the case of the respondents that the refusal of the petitioner to receive the compensation 27 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 tendered forced the respondents to deposit the amount. Such being the case, the amount having not been tendered to the petitioner as provided u/s 31 (1) it cannot be held that Section 31 (1) stood complied with. In the absence of compliance of 31 (1), mere deposit of compensation with the Court below, at a much belated point of time, would in no way be held to be compliance of Section 31 and, in the interregnum, even prior to the order of the Hon’ble Supreme Court in C.A. No.9942 of 2014, Act, 1894, having been repealed and Act, 2013 having come into force, the only inference that could be drawn is that compensation amount has not been paid to the petitioner as provided under Act, 1894.
36. In the case on hand, as aforesaid, neither compensation amount has been paid to the petitioner nor possession of the subject lands been taken over by the 2nd respondent. That being the position as emerges from the materials available on record, the decision in Indore Development Authority case (supra) squarely stands attracted and, therefore, the acquisition proceedings automatically stand lapsed.
28 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016
37. It is the stand of the respondents that the lands cannot be reconveyed back to the petitioner u/s 48-B of Act, 1894 and it would be used by the respondents for some other public purpose. It is the further stand of the respondents that the 2nd respondent has formulated a scheme for the benefit of the general public and, therefore, the said lands would be used for the said purpose.
38. Though such a contention is advanced, it is to be pointed out that the lands are acquired for the purpose of the 2nd respondent. Though the lands are to be used for the welfare of general public, yet it could in no way be termed to be a public purpose, as public purpose would take within its fold the larger interest of the welfare of the public. But the acquisition and its further allotment would be nothing but addressing the welfare of a particular individual, who forms part of the larger public and it could not be termed to be a public purpose. Further, the 2nd respondent merely acts as a realtor under the 1st respondent in providing house sites to the public, that too at a cost and the said act could not be termed to be a public purpose.
29 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016
39. In this context the public purpose envisaged by Kandasamy Naidu requires to be looked into when the Will was executed forming a Trust. The relevant portion of the said Will, which is just and necessary for the case on hand, is as under :-
“10. It is my intention to bequeath and endow the rest of my properties to some charity or charities. With this intention in view I hereby bequeath the same to the Trustees of Pachaiyappa’s charities subject to the conditions, payment and restrictions mentioned below. The rest of my properties both movables and immovable including promissory notes, hand loans, outstanding mortgages, moneys in Banks, etc., shall be taken possession of by the official trustee as Executor and Trustee of this Will and realize and invest them in proper Government Securities or in fixed deposits in any scheduled Bank. The Executor shall have full power to sell and dispose of these properties and convert them into cash if necessary. If in the opinion of the executors the immovable properties are yielding better income than the Government securities or fixed deposits, then these immovable properties need not be sold by them.” (Emphasis Supplied) 30 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016
40. The intention of the testator is writ large even in the very first sentence of the para, where the testator intends to bequeath the properties in favour of the Trust. The intention of the testator is to use the properties for some charity or charities, which will serve the interest of the public and more especially the poor and the needy. However, the present acquisition by the 1st respondent is for the 2nd respondent, which acquisition is not for a public charitable purpose, but is for the purpose of selling the said lands to general public. There is a sea of difference between public purpose and benefit of the general public and both cannot be equated to be one and the same. While public purpose would encompass within itself all the citizenry, however, benefit of general public would take within its fold only people, who purchase the land from the 2nd respondent, may be upon certain criteria fixed by the 2nd respondent. However, that would not satisfy the ingredients of public purpose for which the properties have been put in possession of the Trust. Therefore, the contention of the respondents that the lands are to be utilized for the benefit of the general public cannot be said to be within the confines of the wish of the testator and the fact that the 2nd respondent is more of a real estate agency being run under the auspices of the Government, may be with a broader view, cannot be allowed to 31 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016 reclaim the land, which has been given for charitable purpose by the testator to be used for purposes other than charity. The intention of the testator should be honoured, when it satisfies the public purpose for which the lands have been bequeathed and are being used by the Trust.
41. In such a backdrop, this Court is of the considered view that the public purpose put forth by the respondents would not fall within the definition of public purpose and, accordingly, the acquisition cannot be allowed to be taken to its logical conclusion, more so, in view of the very act of the respondents, the acquisition itself has lapsed in view of Section 24 (2) of Act, 2013.
42. Further, it is to be pointed out that the intention of the testator being for the purpose of charity, to achieve the said object and vision of the testator, it is made clear that the petitioner shall not alienate the subject lands, of which it is the custodian, to any other entity other than the Government and the Government, in turn is directed not to utilize the property for any other means other than for the benefit of the public at large and which does not involve monetary considerations and benefits being passed to any party. 32 https://www.mhc.tn.gov.in/judis ____________ W.P. Nos.16632-16633/2016
43. For the reasons aforesaid, the writ petitions are allowed and the impugned order is hereby set aside and the acquisition proceedings stand lapsed in view of non-compliance of provisions of Section 24 (2) of Act, 2013. Further, invoking the inherent jurisdiction and extraordinary powers vested in this Court under Article 226 of the Constitution of India, the petitioner is directed not to alienate the property in favour of any entity other than the Government and the Government/1st respondent, in turn, is directed not to utilize the property for any other means other than for the benefit of the public at large and which does not involve monetary considerations and benefits being passed to any party. There shall be no order as to costs.
14.09.2022
Index : Yes / No
Internet : Yes / No
GLN
33
https://www.mhc.tn.gov.in/judis
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W.P. Nos.16632-16633/2016
To
1. The Secretary to Government
Housing & Urban Development Dept.
Government of Tamil Nadu
Fort St. George, Chennai 600 009.
2. The Chairman & Managing Director
Tamil Nadu Housing Board
Nandanam, Chennai 600 035.
3. The Special Tahsildar
Land Acquisition (VIII)
Tamil Nadu Housing Board Scheme
Nandanam, Chennai 600 035.
34
https://www.mhc.tn.gov.in/judis
____________
W.P. Nos.16632-16633/2016
M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN
W.P. NOS.16632 & 16633 OF 2016
Pronounced on
14.09.2022
35
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