Madras High Court
K.Natarajan vs State Of Tamil Nadu
Author: M.Dhandapani
Bench: M.Dhandapani
____________
W.P. No.4026/2014, etc. Batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
18.07.2022 10.08.2022
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NOS. 4026 TO 4029 & 4131 TO 4134 OF 2014
W.P. NOS. 14105 TO 14107 & 20981 TO 20985 OF 2015
W.P. NO. 14105 OF 2015
K.Natarajan .. Petitioner
- Vs -
1. State of Tamil Nadu, rep. by
its Secretary to Government
Housing & Urban Development Department
Fort St. George, Chennai 600 009.
2. The Chairman
Tamil Nadu Housing Board
Nandanam, Chennai 600 035.
3. The District Collector
District Collectorate
Thumbankruchi Village
Namakkal District.
4. The Special Tahsildar
Salem Neighbourhood Scheme
1
https://www.mhc.tn.gov.in/judis
____________
W.P. No.4026/2014, etc. Batch
Salem. .. Respondents
W.P. No.14105 of 2015 filed under Article 226 of the Constitution of India
praying this Court to issue a writ of certiorari calling for the records comprised in
G.O. Ms. No.182, Housing & Urban Development (LA4-2) Department, dated
16.12.2014 on the file of the 1st respondent and quash the same.
For Petitioners : Mr. B.Kumar, SC, for
M/s. R.Karthikeyan in WP Nos.4026 to
4029/14 & 14105 to 14107/15
Mr. G.Rajagopal, SC, for
M/s. R.Karthikeyan in W.P. No.4131 to
4134/14 & 20987 to 20985/15
For Respondents : Mr.R.Neelakandan, AAG
Assisted by Mr.Yogesh Kannadasan, Spl. GP
For RR-1, 3 & 4
Mr. D.Murugan, Std. Counsel for R-2
COMMON ORDER
Acquisition of lands for the Namakkal Neighbourhood Scheme, which was floated by the 2nd respondent herein, viz., the Tamil Nadu Housing Board, way back in the year 1984, is sought to be challenged through the third round of litigation, by way of the present writ petitions, instituted at the instance of the original owners and also the subsequent purchasers. By the present petitions, 2 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch G.O. Ms. No.182, Housing & Urban Development (LA4-2) Department dated 16.12.2014 is put in issue, in and by which Declaration u/s 6 of the Land Acquisition Act, 1894 (for short ‘Act, 1894’), which was the culmination of the Notification issued u/s 4 (1) on 25.11.2013 under Act, 1894 is sought to be challenged.
2. The brief facts of the case, as could be culled out from the affidavit filed in support of the present petitions could be stated thus :-
An extent of 8.65 acres of land in survey No.19/2 situate at Vagurampatty Village, Namakkal Taluk and District, originally belonged to one Ramasamy and his brothers, which was sought to be acquired for the formation of the ‘Namakkal Neighbourhood Scheme’ by issuance of Notification u/s 1 of Act, 1894 on 12.11.1981 and published in the Gazette on 16.12.1981. Pursuant to the Notification, Declaration u/s 6 was issued on 31.3.1984. The petitioners aver that the said proceedings were put to challenge by the land owners before this Court in the first round of litigation in W.P. No.8888 of 1984. Pending the said writ petition, award came to be passed by the Special Tahsildar on 22.6.1989 determining the compensation at Rs.4,95,719.85. Subsequently, after the 3 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch passing of the award, W.P. No.8888 of 1984 came to be allowed by this Court on 19.7.1994 on the ground that the purpose of land acquisition in the notification was vague as to the identification of any public purpose.
3. The said order in W.P. No.8888 of 1984 was tested in appeal in W.A. No.999 of 1995, at the instance of the Special Tahsildar, which was allowed by the Division Bench on 22.1.2001. It is further averred by the petitioners that inspite of the order of the Division Bench, no steps were taken to pay the compensation amount to the petitioners nor any steps were taken to deposit the amount with the Sub Court as provided u/s 30 and 31-A of Act, 1894, to which a reference is provided.
4. Pursuant to the order passed in W.P. No.8888 of 1984 allowing the writ petition in favour of the petitioner, pending adjudication of W.A. No.999/1995, some parcels of land were alienated and, thereafter, while representation was made with regard to non-payment of compensation, prayer was also made to drop all further land acquisition proceedings and in the absence of consideration of the said representation, W.P. No.30186/2007 was filed questioning the 4 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch acquisition proceedings vide the Notification u/s 4 (1) dated 12.08.1981 as well as the Declaration u/s 6 dated 31.3.1984 and the subsequent Award No.6/88-89 dated 22.6.1989, which petition, along with other petitions were dismissed by this Court on the ground that the acquisition proceedings would not lapse for non-compliance with the provisions contained u/s 31 (1) and (2) of Act, 1894 and lapsation of the acquisition could only be u/s 11 (A) of Act, 1894 and that the only remedy available to the petitioners is to seek interest u/s 34 of the Act, 1894.
5. Aggrieved by the said order dated 9.6.2009, the same was challenged in W.A. Nos.875 and 876/2009 and a Division Bench of this Court, vide judgment dated 22.12.2011, allowed the appeals quashing the acquisition proceedings on the ground that the delay of 19 years in making the deposit would vitiate the acquisition proceedings. Aggrieved by the said order, the Housing Board preferred SLP (C) No.13267/2012 before the Hon’ble Supreme Court, which was dismissed by order dated 10.05.2012.
6. It is the further averment of the petitioners that pending the writ petitions and writ appeals, with regard to certain portions of the lands, there 5 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch were mutation in the revenue records. It is further averred that pursuant to the order of the Hon’ble Supreme Court, no action was taken by the respondents to acquire the lands, which led the petitioners to believe that the acquisition proceedings had been dropped and in the interregnum, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short Áct, 2013’) was enacted, which came into force on 1.1.2014. It is the further stand of the petitioners that Act, 2013, casted a duty on the respondent authorities to obtain Social Impact Assessment report and laid down stringent guidelines and provisions with regard to resettlement and making deposit of compensation before the issuance of Declaration, thereby bringing greater transparency to the land acquisition proceedings.
7. It is the further averment of the petitioners that out of blue, the petitioners were served with a notice on 28.1.2014 by the 4th respondent calling the petitioner to attend the enquiry on 12.2.14 to state their objections for acquisition of their lands. It is further averred by the petitioners, pursuant to the enquiry made by them, that having slept over the acquisition for over two decades, more so even after passing of the award, the present Government 6 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch Order has been issued on 25.11.13 to acquire 6.75 acres of land, followed by the Notification u/s 4 (1) under Act, 1894, dated 2.12.2013, but curiously the name of the petitioners were not shown as land owner though the revenue records showed the petitioners to be the owner of the lands.
8. It is the further averment of the petitioners that the petitioners including the other land owners, whose lands were sought to be acquired, had made detailed objections on 17.12.2013 pointing out the quashment of the earlier acquisition proceedings and also the various discrepancies in the notification, which is bereft of material particulars such as the constructions put up on the lands, which are sought to be acquired and the notification has been issued without looking into the revenue records. It was further represented that the cost of acquisition based on the market value of the lands would be exorbitant, which would not be just, legal and effective with regard to the implementation of the Neighbourhood scheme and, therefore, request was made to drop the acquisition proceedings u/s 15-A of the Act, 1894. 7 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
9. It is the further averment of the petitioner that pending the representation, the 4th respondent issued notice u/s 5-A of Act, 1894, calling upon the land owners to appear for enquiry on 22.1.14 to state their objections and the land owners, by means of written communication dated 11.1.14, while made detailed objections, further, on their appearing before the 4th respondent in person on 22.1.14, had reiterated the objections made in their representation dated 17.12.13.
10. It is the further averment of the petitioners that the land owners were served with notice dated 28.1.14 by the 4th respondent u/s 3 (b) of the Land Acquisition (Tamil Nadu) Rules on 29.1.14 calling upon the land owners to attend the enquiry on 12.2.14 for hearing the objections, which was done in pursuance of the communication of the Housing Board which was received upon the objections of the land owners, received by the 4th respondent were communicated. It is the further averment of the petitioner that for the first time, only in the above notice, the names of the petitioners were mentioned and previously, neither in the 4 (1) Notification nor under the enquiry u/s 5-A, the names of the petitioners were shown.
8 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
11. It is the further averment of the petitioners that the 4 th respondent, without considering the objections raised by the land owners either in the reply to the notice u/s 4 (1) or the representations made to the 1st respondent, rejected the objections and proceeded with issuing the declaration u/s 6 of Act, 1894, which had since been repealed read with Section 24 (1)(A) of Act, 2013 declaring that the lands owned by the petitioners are required for a public purpose. It is the further averment of the petitioners that the entire acquisition proceedings are vitiated by legal mala fides and gross abuse and misuse of powers. It is the further averment of the petitioners that when the earlier acquisition proceedings had been quashed on 22.12.2011 and Act, 1894, having been repealed with effect from 31.12.13 and Act, 2013, having come into force on 1.1.14, the present Declaration u/s of Act, 1894, had been issued only to deprive the petitioners of their rights to fair compensation as provided under the said Act, 2013. Further, the acquisition proceedings itself cannot stand the test of legal scrutiny as the declaration has been issued under an Act, which had been repealed and was no longer in force.
9 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
12. It is the further averment of the petitioner that the acquisition proceedings have to be quashed insofar as Act, 1894 stood repealed with effect from 1.1.14 and that the notification was issued u/s 4 (1) of Act, 1894 on 2.12.2013 but, thereafter, notice u/s 5-A was issued only on 6.1.2014 by which time Act, 1894 was repealed and, therefore, the provisions of the repealed Act would not in any way further the proceedings initiated under Act, 1894 and any acquisition could only be pursuant to Act, 2013. Therefore, on the above pleas, the present petitions have been filed by the petitioners.
13. Learned senior counsel appearing for the respective petitioners submitted that the present petitions challenge the acquisition proceedings initiated by issuance of Notification u/s 4 (1) of Act, 1894 on 25.11.13 and the Declaration issued u/s 6 of Act, 1894 on 16.12.2014. It is the submission of the learned senior counsel that the issuance of a Declaration u/s 6 under Act, 1894 on 16.12.2014 is wholly impermissible and legally unsustainable, as on the said date, Act, 1894 stood repealed and, therefore, there is no provision in the eye of law in and by which such a Declaration could be issued under Act, 1894. 10 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
14. It is the further submission of the learned senior counsel the initial notification u/s 4 (1) as also the Declaration u/s 6 was put in issue by the land owners by filing W.P. No.30186/07 and 4096/08 on the ground that compensation amount fixed by the land acquisition officer was neither paid to the land owners nor deposited in Court and, thus the entire acquisition proceedings has become non-est in the eye of law and the said writ petitions were dismissed vide order dated 9.6.09, which was questioned in appeal, W.A. Nos.875 and 876/09 and the Division Bench, vide the judgment dated 22.12.2011, allowed the appeals in favour of the petitioners herein and the Special Leave Petition filed by the Government before the Hon’ble Supreme Court ended in dismissal vide order dated 10.5.2012 and, therefore, for all purposes the entire acquisition proceedings stood quashed.
15. It is the further submission of the learned senior counsel that once the acquisition proceedings was held to be illegal and unsustainable by the Division Bench of this Court due to enormous delay in payment of compensation, which has been affirmed by the Hon’ble Supreme Court, the decision had attained finality and, therefore, the present acquisition process for the very same purpose 11 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch cannot be maintained and, therefore, the present acquisition cannot be sustained and even if it is to be sustained, it can be only under Act, 2013 and not under Act, 1894.
16. It is the further submission of the learned senior counsel that even if the fresh acquisition could be continued under Act, 2013, the same cannot survive as the Declaration u/s 6 has not been issued within a period of one year from the date of notification u/s 4 (1). It is the further submission of the learned senior counsel that Act, 2013 provides for certain mechanism in the form of safeguard in respect of the lands that are sought to be acquired and without following the said safeguards provided u/s 4 and 16 of Act, 2013, acquisition cannot be maintained. It is the further submission of the learned senior counsel that the fresh Notification u/s 4 (1) of Act, 1894 was issued on 25.11.13 and the Declaration u/s 6 has been issued on 16.12.14 at which point of time Act, 2013 has taken effect and Act, 1894 stood repealed. Therefore, even if the acquisition proceedings is to be maintained, the provisions pertaining to Sections 26, 30 and 31 have to be fulfilled in letter and spirit and without fulfillment of the aforesaid provisions, the land acquisition proceedings cannot be sustained. 12 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
17. It is the further submission of the learned senior counsel that even Sections 4, 16 and 18 have to be complied before the Declaration could be published. However, in the case on hand, the mandate of the said sections have not been fulfilled. It is the further submission of the learned senior counsel that the mandate of Section 19 (2) relating to deposit of the entire amount has not been fulfilled by the requisitioning body as even till date, the amount towards the compensation has not been deposited by the requisitioning body. In the absence of the deposit of the aforesaid amount towards compensation, the Declaration issued by the respondents is grossly unsustainable.
18. In fine, it is the contention of the learned senior counsel that the former Notification and Declaration having been quashed by this Court in W.A. Nos.875 and 876/11, which has been affirmed by the Hon’ble Supreme Court, the present Notification u/s 4 (1) could be termed only to be a fresh Notification and the Declaration u/s 6 of Act, 1894, in pursuance of the said Notification having been issued after the repeal of Act, 1894, would not save the acquisition proceedings and, therefore, the present acquisition has to be interfered with. In 13 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch the alternative, it is also contended that if at all the respondents want to maintain the acquisition proceedings, still it could be maintained only under Act, 2013 and not under Act, 1894 and even then the acquisition proceedings would be hit by the period of limitation that is prescribed between the Notification and Declaration. Therefore, for all technical and practical purposes, the acquisition proceedings cannot be maintained and, accordingly, the same deserves to be interfered with.
19. Learned senior counsel appearing for the petitioners placed reliance on the following decisions :-
i) Aligarh Development Authority – Vs – Megh Singh & Ors. (2016 (12) SCC 504);
ii) Shiv Kumar & Anr. – Vs – Union of India & Anr. (2019 (10) SCC 229);
iii) Maharashtra Vidarbha Registration Development Corporation – Vs – Mahesh & Ors. (2022 (2) SCC 772); and
iv) Faizabad-Ayodhya Development Authority & Ors. – Vs – Dr. Rajesh Kumar Pandey & Ors. (2022 SCC OnLine SC
679) 14 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
20. Per contra, learned Addl. Advocate General appearing for the respondents submits that initially Notification u/s 4 (1) of Act, 1894 was issued on 12.11.1981 and published in the Gazette on 16.12.1981 and Declaration u/s was approved on 31.3.1984. The land owners, viz., Ramasamy and others, challenging the said land acquisition proceedings filed W.P. No.8888/84 before this Court. Pending the petition, award dated 28.2.1989 in Award No.6/88-89 was passed by the Special Tahsildar determining the compensation at Rs.4,95,719.85. It is the submission of the learned Addl. Advocate General that since the land owners failed to produce any documentary evidence and also were not ready to give deposition regarding the title to the lands, which were sought to be acquired, the compensation was ordered to be remitted with Sub Court, Namakkal u/s 30 and 31 (2) of Act, 1894.
21. It is the further submission of the learned Addl. Advocate General that upon the disbandment of the post of Special Tahsildar (LA), Neighbourhood Scheme, Namakkal, on 28.2.1989, the file was handed over to the Revenue Divisional Officer, Namakkal. The award amount was sent by the Housing Board on 30.09.1989 to the tune of Rs.4,95,719.85 to the Revenue Divisional Officer, 15 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch Namakkal, which was dealt with by the Revenue Divisional Officer, Namakkal, and the file was handed over to the Special Officer (LA), Neighbourhood Scheme, Salem during April, 1990. It is the further submission of the learned Addl. Advocate General that due to certain administrative lacunae upon the transfer of the relevant officers dealing with the file, the award amount deposited in SBI, Namakkal, was omitted to be deposited in Sub Court, Namakkal. It is the further submission of the learned Addl. Advocate General that only upon the claim being made by one Marudhayee, the non-deposit of the amount in Sub Court, Namakkal, came to light and, therefore, direction was issued to Special Tahsildar (LA), Neighbourhood Scheme, Salem, for depositing the amount with Sub Court, Salem.
22. It is the further submission of the learned Addl. Advocate General that another cheque for an amount of Rs.4,95,720/- was given by the Housing Board on 7.8.07, which was deposited in the Sub Court, Namakkal to the credit of LAOP No.8/2007. It is the further submission of the learned Addl. Advocate General that W.P. No.8888/1984 questioning the land acquisition proceedings was 16 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch allowed by the learned single Judge on 19.7.94, against which W.A. No.999/95 was preferred by the State.
23. It is the further submission of the learned Addl. Advocate General that pending the writ appeal, Ramasamy and certain other land owners, some of whom are brothers of the said Ramasamy, had sold the property, which transaction had taken place after issuance of Section 4 (1) Notification. It is the further submission of the learned Addl. Advocate General that while construction was put up on certain portion of the lands, which were sought to be acquired, however, an extent of around 6.75 acres was kept vacant. The appeal in W.A. No.999/95 filed by the State was allowed on 22.1.2001.
24. It is the further submission of the learned Addl. Advocate General that the order of the Division Bench in W.A. No.999/95 having attained finality as no appeal was filed against the said order, but curiously, W.P. No.36845/06 was filed by the petitioners for consideration of their representation for reconveyance in which direction was issued and pursuant to the said direction, the said 17 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch representation was rejected negativing the request for reconveyance of land u/s 48 (B) of Act, 1894.
25. It is the further contention of the learned Addl. Advocate General that the subsequent purchasers, viz., one Kulandaivel, Vijayakumar and Guhanbabu filed O.S. No.325/10 and 366/10 before the Sub Court, Namakkal, seeking declaration of title and injunction and the said suits are pending. While the said suits were pending, W.P. No.30186/07 has been filed by Ramasamy and others, once again, challenging the notification u/s 4 (1) and seeking quashment on the ground that the delay in payment of compensation has vitiated the acquisition proceedings, which was dismissed by this Court on 9.6.09 against which W.A. Nos.875 and 876/09 were filed and a Division Bench of this Court, vide order dated 22.11.2011, allowed the appeals. It is the further submission of the learned Addl. Advocate General that against the said order of the Division Bench, SLP No.13667/12 was filed by the Housing Board, which was dismissed by the Hon’ble Supreme Court on 10.5.12, though not on merits. 18 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
26. It is the further submission of the learned Addl. Advocate General that in the aftermath of the afore-stated position, the Government had sought for legal opinion from the learned Advocate General, in which opinion was given for the Housing Board to go ahead with issuance of acquisition proceedings afresh by issuing necessary notification u/s 4 (1). In this background, draft notification submitted by the 2nd respondent/Housing Board was approved and fresh notification was issued u/s 4 (1) on 25.11.13 and published in the gazette on 18.12.13 for acquisition of lands to the extent of 6.75 acres.
27. It is further submitted by the learned Addl. Advocate General that in continuation of the notification u/s 4 (1) of Act, 1894, notice for the enquiry u/s 5 (A) was issued scheduling the enquiry on 22.1.14 and notice was issued to the land owners and interested persons on 6.1.14 and 8.1.14 and pursuant to the said enquiry, the land owners and interested persons appeared and placed their objections through counsel and their objections were duly forwarded to the requisitioning body and receipt of reply was also sent to the objectors and they were directed to appear for the enquiry u/r 3 (b) of the rules, which was also conducted by affording proper opportunity to all the persons concerned. 19 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
28. It is the further submission of the learned Addl. Advocate General that pending the proceedings before this Court, the petitioners and other land owners purchased the property from the ex-land owners, viz., Ramasamy and others and revenue records were mutated in the name of the petitioners. It is further submitted that W.P. No.4133/14 was filed challenging the notification issued u/s 4 (1) dated 25.11.13. It is the further submission of the learned Addl. Advocate General that some of the petitioners are purchasers subsequent to the notification u/s 4 (1) having purchased the lands on 12.7.95 and 18.4.2000 after passing of the award by the Special Tahsildar pending W.A. No.999/95.
29. It is the further contention of the learned Addl. Advocate General that Act, 2013 came into force with effect from 1.1.14, but the fact that the acquisition proceedings having reached finality in view of the affirmation of the acquisition proceedings by the order of the Division Bench in W.A. No.999/95 and the same having not been questioned by the petitioners by taking up the issue before the Apex Court, the second round of litigation once again questioning the Notification u/s 4 (1) and Declaration u/s 6 of Act, 1894 along with an additional 20 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch prayer that non-payment of compensation renders the acquisition bad, is wholly erroneous as the earlier round of litigation acts as a bar for the same petitioners to once again litigate the very same issue and it is a clear act of res judicata.
30. It is the further submission of the learned Addl. Advocate General that though the learned single Judge, in the second round of litigation, has not gone deep into the earlier round of litigation in W.A. No.999/95, yet, has taken the correct decision that once an award is passed as per the procedure contemplated under the Act, 1894, it is not open to the land owners to question the acquisition proceedings for failure of the acquisitioning body to pay the compensation as provided u/s 31 (1) and (2) of the Act, 1894, and at best, the course open to the land owners is to seek for interest on the belated payment of compensation u/s 34 of Act, 1894 and the acquisition proceedings would not lapse for the said error.
31. It is the further submission of the learned Addl. Advocate General that W.A. Nos.875 and 876/09, which has been allowed by setting aside the order of the learned single Judge, has erroneously dealt with the issue and in this regard, 21 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch it is submitted that there is no provision available under the Act, 1894, which provides for lapsation of the acquisition proceedings, but for Section 11-A, where an award has not been passed within the period prescribed under the Act and in the present case, the award having been passed within the period prescribed under Act, 1894, the finding recorded by the Division Bench is against the provisions of Act, 1894 and further the order passed by the Division Bench in W.A. No.999/95 having not been challenged in a manner known to law and has been allowed to attain finality, the petitioners, who are land owners and subsequent purchasers are not only barred from reagitating the issue, but the benefit given by virtue of the order of the Division Bench in W.A. No.875 and 876/09, would not accrue to the benefit of the petitioners, as the earlier decision has not been taken into consideration by the Division Bench while passing the orders in W.A. Nos.875 and 876/09.
32. It is the further submission of the learned Addl. Advocate General that when the order in W.A. No.999/95 has reached finality, the said order not being challenged further by the petitioners, the petitioners are estopped from filing W.P. No.30186/07, leave alone the present petition as the award passed in 22 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch Award No.6/88-89 has been affirmed and the acquisition proceedings has attained finality. Therefore, the second round of litigation leading to the order in W.A. No.875 and 876/09 is nothing but an act of res judicata and, therefore, the order in W.A. No.875 and 876/09 is non est in the eye of law and the petitioners cannot derive any benefit out of the present proceedings or the order in W.A. No.875 and 876/09, leave alone claiming interest for the belated payment of compensation as awarded vide Award No.6/88-89.
33. It is the further submission of the learned Addl. Advocate General that some of the petitioners herein are subsequent purchasers, who have purchased the lands between 1995 and 2004, which is subsequent to the issuance of notification u/s 4 (1) who do not have any right to challenge the acquisition proceedings and at best the right that would be available to such of the petitioners is only to claim the compensation payable for the lands purchased by them. Once the acquisition proceedings have been affirmed to be proper by this Court in W.A. No.999/95, the right of the subsequent purchasers stood extinguished and they are stopped from challenging the acquisition proceedings, leave alone the belated payment of compensation.
23 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
34. It is the further submission of the learned Addl. Advocate General that Act, 2013, would have no application to the present case, as the acquisition proceedings have finally been concluded by the affirmative orders in W.A. No.999/95 and, therefore, the contention of the petitioners that there is gross violation of Sections 26, 30 and 31 of Act, 2013 is grossly misconceived.
35. It is the further contention of the learned Addl. Advocate General that the reliance placed on Section 19 (2) of Act, 2013 with regard to deposit the compensation to enable publication of the Declaration within a period of 12 months from the date of publication of preliminary notification would not arise in this case as Act, 2013 would have no application as the acquisition has been made under Act, 1894, which had reached finality even as early as on 22.01.2001.
36. On the aforesaid contentions, learned Addl. Advocate General has also placed reliance on the very same decisions, which were placed before this Court on behalf of the petitioners, but with a different interpretation of law and, accordingly, sought for dismissal of the writ petitions. 24 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
37. In reply to the contentions placed on behalf of the respondents, learned senior counsel appearing for the petitioners submit that there would be no bar for the petitioners, some of whom are subsequent purchasers, to question the notification issued u/s 4 (1) of Act, 1894, for the simple reason that the issuance of a fresh notification u/s 4 (1) cannot be termed to act as res judicata for the simple reason that the earlier round of litigation was only questioning the acquisition on the basis of the Notification dated 12.11.1981. The petitioners being subsequent purchasers, who were the land owners on the date of the notification u/s 4 (1) dated 25.11.13 could very well maintain the present petitions and so also the other petitioners, who had earlier questioned the land acquisition proceedings, as the present issue pertains to the notification dated 25.11.13. Further, it is the submission of the learned senior counsel that res judicata cannot be put against the petitioners and other subsequent purchasers for the reason that the earlier notification issued u/s 4 (1) had been set at naught by the Hon’ble Division Bench of this Court in W.A. Nos.875 and 876/09, which has since been affirmed by the Hon’ble Supreme Court and the present notification u/s 4 (1) dated 25.11.13 is a fresh notification, which has not been 25 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch challenged before this Court, but for the first time through the present petitions and, therefore, the present petitions are very well maintainable and does not suffer the vice of res judicata.
38. It is the further submission of the learned senior counsel that once the earlier acquisition proceedings have been set aside by the Division Bench of this Court in W.A. Nos.875 and 876/09, which has since been affirmed by the Hon’ble Supreme Court, on account of the delay in paying the compensation to the land owners, the earlier order of the Division Bench in the first round of litigation in W.A. No.999/95 questioning the Section 4 (1) Notification and Declaration u/s 6 would become a nullity, as the Hon’ble Supreme Court has quashed the notification and declaration for the delay in payment of compensation to the land owners and such being the case, a nullified order of the Division Bench cannot be the subject matter of consideration in the present round of litigation, which is filed challenging the present acquisition notification and declaration made under Act, 1894, when in reality, when the declaration u/s 6 was made, Act, 1894 had since been repealed and, therefore, any declaration that is made could be only made under Act, 2013 and, if at all the respondents want to maintain the 26 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch acquisition proceedings, computation of compensation would be only on the basis of Act, 2013 and it cannot be on the basis of Act, 1894.
39. It is the further contention of the learned senior counsel that the requirements under the specific provisions relating to rehabilitation and resettlement and impact assessment are mandatory provisions, which require to be complied with before any declaration could be issued and in the absence of the said mandatory provisions being complied with, it would grossly affect the substratum of the acquisition proceedings under Act, 2013 and, therefore, the present acquisition proceedings cannot be sustained.
40. Learned senior counsel for the petitioners, in particular reference, drew the attention of this Court to the objects and reasons behind the enactment of Act, 2013 and submitted that it is a welfare legislation aimed at arriving at a fair arrangement for the benefit of the land owners to get better returns in case of a willing seller-willing buyer and due to the action of the State under the guise of acquisition, the land owners should not be put in detriment by denying them their fair value of the land. The legislation, being a benevolent piece of legislation 27 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch for the welfare of the land owners, wider amplitude should be given to the land owners in case of acquisition of this nature and even a small infraction of the provisions should be interpreted only to the benefit of the land owner and not in favour of the State. Such being the case, the Division Bench in W.A. Nos.875 and 876/09 had taken into consideration the enormous delay in the payment of compensation to the land owners, which has caused detriment to the land owners as they could not derive the benefit of Act, 2013, inspite of the fact that Act, 2013 had come into effect with effect from 1.1.14, though the declaration u/s 6 of Act, 1894, was published only on 16.12.2014, at which point of time, Act, 1894, had stood repealed and, therefore, the said declaration was void and non est in law.
41. This Court gave its anxious consideration to the submissions advanced by the learned counsel appearing on either side and also perused the materials available on record and also the decisions relied on in support of the respective contentions.
28 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
42. The case traverses a myriad path starting from the acquisition proceedings in the year 1984, which has been carried on through various stages, involving two rounds of litigations; the first one was allowed to attain finality before this Court, in and by which acquisition was questioned on account of its vagueness, which had gone in favour of the respondents and after a period of about two decades from the passage of the award, non-payment of compensation has been taken as the ground to quash the acquisition, which had been held in favour of the petitioners by a Division Bench of this Court and appeal taken by way of Special Leave to the Supreme Court, ended in cryptic dismissal by the Apex Court ultimately boiling down to the present writ petitions, which are resultantly on account of the subsequent Notification u/s 4 (1) and the consequential Declaration u/s 6 of Act, 1894, inspite of the coming into force of Act, 2013, prior to the issuance of the Declaration u/s 6.
43. Certain relevant provisions of Act, 1894 and Act, 2013 in support of the respective contention of the petitioners and the respondents and various decisions, which have been interpreted diametrically to the benefit of the parties to the lis, are pressed into service, appreciation of which requires a clear 29 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch sequence of facts to be culled out before the interpretation of the various provisions of law, which would be crucial for a determinative decision at the hands of this Court to serve proper adjudication and deliberation of the case.
44. An extent of about 8.75 acres, for the purpose of formation of Namakkal Neighbourhood Scheme, was sought to be acquired by the 4th respondent on the request of the requisitioning body, viz., the 2nd respondent pursuant to which Notification u/s 4 (1) was issued on 16.12.1981 and after following the procedural formalities Declaration u/6 of Act, 1894 was published on 31.3.1984. The said notification was questioned by the writ petitioners and other land owners by filing W.P. No.8888/1984, which ended in their favour citing the decision in L.Krishnan – Vs – State of Tamil Nadu (1991 TNLJ 144) vide order dated 19.7.94. On appeal, the Division Bench, citing the decision rendered by the Hon’ble Supreme Court in the appeal over the aforesaid decision, in State of Tamil Nadu – Vs – L.Krishnan (AIR 1996 SC 497), on the basis of the ratio laid down, held that vagueness cannot be a ground to quash the acquisition proceedings and allowed the appeal in favour of the State vide order dated 30 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch 22.01.2001. Against the said decision, no appeal has been filed, which in essence made the order of the Division Bench final.
45. Pending the writ petition, the acquisition proceedings stood concluded by the passing of the award in Award No.6/88-89 dated 28.2.1989 determining the compensation payable at Rs.4,95,719.85. In effect, the acquisition proceeding was taken to its logical conclusion by passing of the award.
46. However, inspite of the passing of the award on 28.2.1989, consequent to the writ petition being decided in favour of the petitioners and pending the appeal, it is fairly admitted that the petitioners had alienated a portion of the property to an extent of about 2 acres to other third parties. Then came the order in the appeal, which, as stated above, was allowed to survive without being tested by way of further appeal, thereby approving the acquisition proceedings.
47. Having kept silent for a period of five years since the acquisition proceedings reaching finality by the order in appeal, the petitioners and subsequent purchasers filed W.P. No.36845/06 seeking direction to the 31 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch respondents to consider their representation for reconveyance of their land and pursuant to the order passed by this Court, the Government had negatived the request of the petitioners for reconveyance of the lands.
48. Thereafter, the petitioners, once again in the year 2007, consequent upon making alienations and creating encumbrance in favour of third parties pending the writ appeal, had once again filed W.P. No.30186 of 2007 and two other land owners, viz., Nallammal and Periasamy had also filed W.P. No.4096/08 questioning the very same Notification u/s 4 (1) and the Declaration u/s 6 of Act, 1894 attendant thereto on the ground that compensation amount has not been paid to them.
49. A learned single Judge of this Court, after exhaustive analysis of the entire case files and also the law on the question of delayed/belated compensation vis-à-vis lapsation of the land acquisition proceedings, held that there is no provision in Act, 1894 that in the event of delay in payment of compensation amount or even for that matter, non-payment of compensation amount, there could be no lapsing of the land acquisition proceedings. The 32 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch learned Judge further went on to hold that the petitioners are not able to place their hand on any provision under Act, 1894 which would make the land acquisition proceedings to lapse due to non-compliance of the provision contained in Section 31 (1) and (2) of Act, 1894. Barring Section 11-A, which allows the acquisition proceedings to lapse only when the award is not passed within the stipulated time, there is no provision under the Act, 1894, which would render lapsing of the acquisition proceedings. Accordingly, the learned single Judge held that the only remedy available to the petitioners is to seek payment of interest u/s 34 of Act, 1894 for the delayed deposit or payment of compensation by the acquisitioning authority. Accordingly, the learned single Judge dismissed the writ petitions.
50. Aggrieved by the said order, the petitioners herein, who were the petitioners in W.P. No.30186/07 as also Nallammal and Periyasamy, the petitioners in W.P. 4096/08 filed W.A. Nos.876 and 875 of 2009 respectively assailing the aforesaid findings and the Division Bench of this Court, while culling out the counter affidavit of the respondents therein relating to W.P. No.30186/07, curiously adverted only to the affidavit of the appellants in W.A. 33 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch No.875/09 (the petitioners in W.P. No.4096/08) without even a whisper about the case of the petitioners herein (the petitioners in W.P. No.31086/07), though both the petitions did not stand on similar set of facts, and, thereafter, the Division Bench went on to hold that the decisions in A.P. Housing Board – Vs – Mohd. Sadatullah & Ors. (2007 (6) SCC 566) and Mahesh Chandra Banerji – Vs – Uttar Pradesh Avas Eva, Vikas Parishad & Ors. (2010 7 SCC 439), stand squarely attracted and that the delay in payment of compensation would render the acquisition proceedings lapsed and, accordingly allowed the writ appeals.
51. Against the aforesaid order of the Division Bench, the matter was taken on appeal by the respondents before the Hon’ble Supreme Court, which was dismissed by the Hon’ble Supreme Court through a cryptic order, which clearly shows that it is not an order on merits.
52. In view of the quashing of the acquisition proceedings as having lapsed by the Division Bench of this Court, the requisitioning body, viz., Tamil Nadu Housing Board, after obtaining the opinion of the learned Advocate General, issued fresh notification u/s 4 (1) of Act, 1894 once again on 25.11.2013, which 34 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch was followed by Gazette Publication on 18.12.2013, enquiry u/s 5-A on 12.02.2014 and Declaration u/s 6 on 16.12.2014. But in the interregnum, Act, 2013 having been enacted and came into force on 1.1.14 by repealing Act, 1894, the present petitions have been filed assailing the acquisition as bad as no enquiry u/s 5-A or Declaration u/s 6 of Act, 1894, could be issued, as on the said date, Act, 1894 was not operative by virtue of its repeal and only the procedures as contemplated under Act, 2013 should be followed and in the present case, none of the provisions relating to Social Impact Assessment and Rehabilitation and Resettlement Scheme having been followed, it vitiates the acquisition and, accordingly, the Notification and Declaration cannot stand the test of judicial scrutiny and, therefore, the same requires to be interfered with.
53. The questions that fall for consideration in the present batch of petitions are :-
i) What is the effect of the Declaration u/s 6 of Act, 1894 issued on 16.12.2014 vis-à-vis, Act, 2013;
ii) What is the effect of the order passed in W.A. No.999/1995 vis-à-vis the order passed in W.A. Nos.875 and 876/2009 and 35 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch the binding nature of the respective orders for arriving at a finding in these petitions;
iii) Whether the non-compliance of the provisions relating to Social Impact Assessment and Rehabilitation and Resettlement, as provided under Act, 2013, vitiates the Notification u/s 4 (1) issued on 25.11.2013;
iv) Under which Act the petitioners would be entitled to receive compensation, whether under Act, 1894 or under Act, 2013.
54. There is no dispute about the fact that as a consequence of the orders of the Division Bench in W.A. Nos.875 and 876/09, in and by which the acquisition was held to have lapsed, a fresh notification u/s 4 (1) of Act, 1894 was issued on 25.11.2013 and before the Declaration u/s 6 of Act, 1894 could be issued, Act, 1894 was repealed by way of enactment of Act, 2013, which came into effect on 1.1.14. However, like all the other enactments, saving provision was provided u/s 24 of Act, 2013. For better appreciation, Section 24, which provides for saving acquisition pertaining to Act, 1894, is quoted hereunder for better clarity :- 36
https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch “24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.– (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894,—
(a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or
(b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed. (2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.” 37 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
55. The main plank of argument of the petitioners is that no award having been passed on the date when Act, 2013, came into force, the present acquisition cannot be maintained under Act, 1894 and at best the acquisition can be maintained only under Act, 2013. Further to the said argument, it is the stand of the petitioners that for maintaining the acquisition under Act, 2013, it is incumbent on the respondents to adhere to the provisions u/s 4 and 16 of Act, 2013 relating to social impact assessment and rehabilitation and resettlement. It is the further stand of the petitioners that on the publication of declaration and summary of rehabilitation and resettlement provided u/s 19 of Act, 2013 and in such circumstances, it is incumbent on the respondents to adhere to sub-section (7) to Section 19 failing which the notification would be deemed to have been rescinded.
56. Though the petitioners place the aforesaid stand before this Court, however, the crucial issue to be determined in this case is issue (ii) framed above, which would form the basis of answering the other issues.38
https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
57. As stated above, the acquisition proceedings had begun in the year 1981 by issuance of notification u/s 4 (1) of Act, 1894 on 12.11.1981. Declaration u/s 6 was also published on 31.3.1984. Challenging the said acquisition proceedings W.P. No.8888/84 was filed. Pending the said writ petition, by award dated 28.2.1989, compensation was determined at Rs.4,95,719.85. However, as is evident from the undisputed facts, which have been the consistent plea of the respondents even in the earlier round of litigation, erroneously the entire compensation ordered to be remitted before the Sub Court, Namakkal, was deposited with SBI, Namakkal as early as on 11.10.1989. When the matter stood thus, without the petitioners making any fuss about compensation, the pending writ petition was allowed in favour of the petitioners in W.P. No.8888/84 vide order dated 19.7.1994. Assailing the said order, W.A. No.999/95 was filed, but the petitioners, in the year 1995 and thereafter, pending the appeal, alienated about 2 acres of land. Then came the order of the Division Bench, which allowed the appeal, confirming the legitimacy of the acquisition proceedings. By the time the aforesaid order could be passed by the Division Bench, the petitioners had conveniently created encumbrance by selling a portion of the land, which had been the subject matter of acquisition proceedings. 39 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
58. Be that as it may. The challenge to the acquisition proceedings was mainly on the ground of vagueness of the purpose shown in the Notification u/s 4 (1), which has been held by the Division Bench to be not a noteworthy issue requiring interference with the notification in view of the decision of the Hon’ble Supreme Court. On the appeal being allowed, no further appeal was taken to the Hon’ble Supreme Court and, thereby, the order of the Division Bench attained finality. Therefore, the acquisition proceedings which continued pending the hiatus between the parties, was logically concluded. However, the compensation amount, it is alleged was not paid.
59. In this regard, a careful perusal of the counter of the respondents reveal that administrative lapses had resulted in the award amount not being withdrawn from SBI, Namakkal and deposited with the Sub Court, Salem. However, this had come to the attention of the acquisitioning authority, which resulted in the award amount of Rs.4,95,720/- being given once again on 7.8.07 by way of cheque by the requisitioning authority for being deposited with Sub Court, Namakkal.
40 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
60. In the above backdrop of the facts and circumstances, the further acts performed by the petitioners require to be looked into to find out whether the delay in payment of compensation would vitiate the acquisition proceedings and if so, whether the acquisition proceedings would lapse.
61. After the passage of the order in W.A. No.999/95 vide order dated 22.01.2001, the petitioners had kept silent without taking any action for claiming the compensation. But the petitioners have been busy creating encumbrance by alienating the subject lands pending the appeal, which ultimately was held against the petitioners. Curiously, after a lapse of five years, the petitioners, instead of claiming compensation had filed W.P. No.36845/06 for direction to the respondents to consider their representation for reconveyance of their land.
62. However, it is borne out by record that between 1995 and 2004, the petitioners had sold about 2 acres of land from the extent of 8.75 acres, which was acquired. That being the undisputed case, this Court is at a loss to understand as to how the petitioners sold the lands during the pendency of the 41 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch appeal and with equal vehemence claim reconveyance from the Government. However, in compliance of the directions of this Court, the Government had rejected the said representation. Subsequent purchasers, three in number had filed O.S. Nos.325 and 326 of 2010 claiming the relief of Declaration of title and injunction before the Sub Court, Namakkal, with which this Court is not concerned in the present petitions.
63. From the date of passing of the order in W.A. No.999/95 no claim had been made by the petitioners for compensation, but only sought reconveyance. Subsequent to the rejection of the reconveyance request and after creating encumbrance by alienating a portion of the subject lands, the petitioners had filed W.P. No.30186/07 challenging the very same 4 (1) Notification which had already stood decided in W.A. No.999/95 and also attained finality. The petitioners cannot be allowed to pick and choose the grounds which they would like to agitate at particular intervals as any such leverage, if given, it would lead the way to endless litigation. Further, it is borne out by record that in the year 2007, the compensation amount had been deposited by the respondents before the Sub Court, Namakkal.
42 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
64. In the above scenario, Section 30 and 31 (1) of Act, 1894, which deals with apportionment and deposit of compensation, for better appreciation, is quoted hereunder :-
“30. Dispute as to apportionment.- When the amount of compensation has been settled under section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court.
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;43
https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount.
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.”
65. A careful perusal of sub-section (1) to Section 31 reveals that tendering of payment to the person interested is a condition mandatory and only in the 44 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch event of the person interested not willing to receive the compensation, the contingencies as envisaged u/s (2) to Section 31 comes into play. In the case on hand, it is the case of the respondents that since the land owners failed to establish their title to the subject lands, pursuant to Award No.6/88-89 dated 28.02.1989, the compensation was ordered to be deposited in Sub Court, Namakkal. The aforesaid stand of the respondents with regard to the allegation that the petitioners failed to establish their title, on counter, has not been controverted by the petitioners. It has all along been the case of the petitioners that compensation was not paid to them, yet on counter, when the respondents have submitted that it was ordered to be deposited for the aforesaid reason and also pending disposal of the writ petition, the petitioners, even in W.P. No.36845/06 have not claimed that no compensation was paid to them, but have merely claimed reconveyance of the lands. Further, it is evident from the award, which has been extracted in W.P. No.31086/07, the petitioners have refused to receive the compensation offered to them. Such being the definitive case, the claim of the petitioners that compensation was not paid to them is contrary to the records.
45 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
66. It further transpires from the record that the administrative lapse with regard to deposit of the compensation amount was elicited, which led to redeposit of the said amount on 7.8.07 before Sub Court, Namakkal to the credit of LAOP No.8/2007. Such a reference has not been disputed by the petitioners on affidavit. However, there is no whisper about the said reference in the order passed in W.A. Nos.875 and 876/09.
67. No doubt, the administrative lapse was sought to be cured by redeposit of the compensation amount with the Sub Court, Namakkal on 7.8.07. However, till the year 2006, the petitioners have not raised even a finger pointing out that compensation has not been paid nor have they claimed compensation, but for the first time, they have only claimed reconveyance of the land by filing W.P. No.36845/06.
68. In the light of the above position, which transpires from the materials available on record, the acquisition having been upheld vide the order dated 22.01.2001 in W.A. No.999/95, challenging the same acquisition process under the guise of non-payment/belated deposit of award, which resulted in the filing 46 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch of W.P. No.30186/07 and, thereafter, W.A. Nos.875 and 876/09 assumes significance.
69. The acquisition proceedings, as pointed out above, has been affirmed by the order of the Division Bench in W.A. No.999/95, which has been allowed to attain finality, there being no appeal made against the said order and the acquisition proceedings have also reached its logical conclusion in the form of passing of the award. In fact, from 1995 till 2006, the petitioners have kept silent without any murmur about any matter pertaining to the subject lands, which were acquired, but have been busy dealing with alienating a portion of the subject lands during the said period. Further, more particularly, between 2001 and 2006, the date of the order passed in W.A. No.999/95 and the filing of the writ petition in W.P. No.36845/06, the petitioners have not whispered anything about non-payment of compensation but have merely filed W.P. No.36845/06 for relief other than non-payment of compensation.
70. This clearly shows that except for creating encumbrance on the said lands, which have vested with the Government, the petitioners have not done 47 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch anything to question the non-payment of compensation. It is to be pointed out that the petitioners cannot pick and choose their time for raising one dispute or the other relating to the acquisition. When the award has been passed as early as in the year 1989, which was much prior to the order passed in W.A. No.999/95, but for filing W.P. No.36845/06 claiming consideration of their representation for reconveyance, the petitioners have not made any claim for compensation. The act and attitude of the petitioner only necessitates this Court to draw an adverse inference.
71. Be that as it may. Coming to the issue of the order passed by the Division Bench in W.A. Nos.875 and 876/09 vis-à-vis the order passed in W.A. No.999/95, it is the stand of the learned senior counsel for the petitioners that the subsequent to the passing of the order in W.A. Nos.875 and 876/09, the order passed in W.A. No.999/95 has become a nullity and the order in W.A. Nos.875 and 876/09 having been confirmed by the Hon’ble Supreme Court, necessarily the order in W.A. No.999/95 will not survive.
48 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
72. On the face of it, the aforesaid contention, though looks attractive, but a deeper scrutiny of the matter only makes this Court to negate the said contention. As has been pointed out above, pending the writ petition in W.P. No.8888/84, award has been passed on 28.02.1989. The order in W.A. No.999/95 had approved the acquisition proceedings by setting aside the order passed in W.P. No.8888/84. Between 2001 and 2006, when the legality of the acquisition proceedings was upheld, the petitioners had not taken any steps, but for the writ petition in W.P. No.36845/06. It is to be borne in mind that alienation was made with regard to a portion of the acquired land between 1995 and 2004, which clearly shows that even after the order passed in W.A. No.999/95, alienation has been made of certain portion of land for reasons best known to the petitioners.
73. In the aforesaid backdrop, W.P. No.30186/07 was filed by the petitioners and 15 others once again challenging the very same notification u/s 4(1). Learned single Judge of this Court, after exhaustive analysis of the law on the subject, had rejected the case of the petitioners, while observing that the 49 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch only avenue open to the petitioners is to seek for interest on the delayed payment of compensation u/s 34 of Act, 1894.
74. It would be apposite to refer to the observations of the learned single Judge in W.P. No.30186/07 and the relevant portion of the said order are quoted hereunder :-
“21. The facts are not in dispute in respect of the lands acquired in both the cases. The award has been passed on 28.2.1989. The various writ petitions filed challenging the land acquisition proceedings have ended against land owners.
Admittedly only after the disposal of W.P. No.8888 of 1984 and during the pendency of the W.A. No.999 of 1995 certain portions of the acquired land have been transferred by the land owners and as such subsequent purchasers will not get any right or title over the said lands purchased by them. Admittedly, a sum of Rs.4,95,719.85/- fixed as compensation under the award was neither tender nor paid to the land owners but ordered to be remitted in Sub Court, Namakkal, for a decision under Section 31 of the Act subject to the disposal of the W.P. No.8888 of 1984 pending before this Court.
22. In the award itself it is stated as follows :-
“Thiru. Ramasamy and his brothers and his family members are the present owners of the lands as decided in 50 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch the Registry and ownership of the land. Since the land owners failed to produce any documentary evidence and to give any deposition regarding the title to the lands. The Land Acquisition Officer unable to decide the apportionment of the rights of their family members and therefore the entire compensation is ordered to be remitted in the Sub Court, Namakkal, for a decision under Section 30 and 31 (2) of the L.A. Act subject to the disposal of the Writ Petition No.8888 of 1984 in the High Court, Madras.
“17. The land owners were present. The applying body has presented by the Head Surveyor, Office of the Executive Engineer and Administrative Office, Salem Housing Unit, Salem. As already stated the land owners is the writ petitioners have stated that they are not want to receive compensation as the writ petitions are pending for final disposal in the High Court, Madras and they did not also give their deposition. They have presented petition objecting and went away. Hence, the compensation amount will be deposited in the civil court.” (Emphasis Supplied)
75. From the above, it is evident that the compensation was not paid to the petitioners on account of certain clarification in the title to the property, 51 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch which would result in apportionment of compensation, but for which compensation would have been paid. Equally, it is evident from the aforesaid order of the learned single Judge that even at the time of award, the petitioners did not want to receive the compensation and they wanted to await the orders in the writ petition. That being the admitted position, merely because an administrative lapse had occurred in the deposit of the compensation amount, would not be taken to mean that the petitioners were left in lurch with regard to receipt of compensation. The petitioners, even after the orders in W.A. No.999/95 have not taken any steps to claim the compensation amount. Rather during the period between the order in the writ petition and the writ appeal, the petitioners were hell-bent on alienating a portion of the subject lands.
76. As has been stated above, inspite of the orders in W.P. No.8888/84, which was set aside in W.A. No.999/95, which was allowed to attain finality, the petitioners did not take any steps to claim the compensation except for the fact that they filed W.P. No.36845/06 seeking reconveyance of the lands, which was rejected. That being the resultant position, as could be seen from the materials available on record, the stand of the petitioners that no compensation was paid 52 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch even after a lapse of 19 years does not inspire the confidence of this Court.
When the petitioners, on their own volition, rejected to receive the compensation pending disposal of the writ petition, but for their success in the writ petition, they did not receive the compensation, but after the disposal of the writ appeal, no steps have been taken by the petitioners to reclaim the compensation, though they had filed W.P. No.36845/06 for reconveyance, for which there is no plausible explanation.
77. Further, finding has been recorded by the learned single Judge that insofar as the petitioners in W.P. No.4096/08, compensation has neither been paid nor been deposited but such is not the case with the petitioners herein, who are the petitioners in W.P. No.30186/07 in whose case, the amount has not been paid but deposited. The decision in A.P. Housing Board case (supra), on which reliance was placed to canvass the plea that delay in payment of compensation would result in lapsation of acquisition proceedings, was negatived.
78. The learned single Judge, in W.P. No.30186/07 has further gone on to hold that there is no provision under Act, 1894, which would render the 53 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch acquisition proceedings to lapse for failure to pay compensation and the only provision available is under Section 34 by which the petitioners could claim interest for the delayed compensation. It has been categorically held that in the event of non-compliance of the provisions contained u/s 31 (1) and (2), the acquisition proceedings would not lapse.
79. Assailing the aforesaid finding, while the petitioners in W.P. No.4096/08 had moved W.A. Nos.875 of 2009, the petitioners herein, who are the petitioners in W.P. No.30186/07 had filed W.A. No.876/09. A perusal of the order of the Division Bench in W.A. Nos.875 and 876/09 reveal that while in the former portion of the order, the Division Bench has extracted the counter of the respondents in the writ petition, but for recording that deposit has been made erroneously, there is no other finding with regard to the act of the petitioners, which has been discussed by the learned single Judge as is reflected in the award. Further, the contents of the award has also not been the subject matter of consideration. Further, the case of the petitioners in W.P. No.4096/08 alone has been discussed in detail, but there is no discussion with regard to the case of the petitioners in W.P. No.30186/07.
54 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
80. Be that as it may. The ground on which the appeals were allowed was merely on account of delay in payment of compensation. There is no discussion by the Division Bench with regard to the provision of law, which permits lapsing of acquisition proceedings on account of delay in payment of compensation. The entire order is silent on the various provisions of Act, 1894, which governs payment of compensation and the manner in which it is to be paid and the provisions available in the event of default in payment of compensation.
81. The Division Bench had merely adverted to two decisions, viz., A.P. Housing Board case (supra) and Mahesh Chandra Banerji case (supra) to hold that delay in payment of compensation would render the acquisition proceedings lapsed. This Court, with a view to satisfy itself whether such is the ratio laid down and under what provision of law, the Hon’ble Supreme Court had laid down the said dictum, went ahead to peruse the decisions.
55 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
82. A careful perusal of the order in which the decision in Mahesh Chandra Banerji case (supra) has been dealt with reveals that the following finding has been recorded :-
“13. In Mahesh Chandra Banerji’s case (supra), the Honourable Apex Court has held that ‘whatever be the dispute, a citizen cannot be deprived of his property except in accordance with the procedure established by law. The extent of the lands so acquired will have to be established and compensation in respect thereof has to be paid’. Holding so, the Honourable Apex Court has nullified the acquisition proceedings, as improper, since the lands were acquired without paying any compensation amount. … ….” (Emphasis Supplied)
83. In the decision in Mahesh Chandra Banerji’s case, the Hon’ble Apex Court had dealt with a situation in which the acquisitioning body had not established that the lands so acquired and taken possession thereof were notified for being acquired and that compensation was paid and in the absence of establishing the same, the Hon’ble Apex Court held that without establishing that the extent of lands so notified were acquired and compensation paid, the acquisitioning body cannot maintain the said acquisition and on that ground the 56 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch acquisition proceedings were quashed. There was no issue that mere delay in payment of compensation was the basis for lapsing of the acquisition proceedings. With great respect to the Division Bench, this Court is at a loss to understand as to wherefrom such a finding has been culled out to hold that delay in payment of compensation for the lands acquired would render the acquisition proceedings lapsed. To the mind of this Court, the decision in Mahesh Chandra Banerji’s case would have no application to the present case as the circumstances and facts are in no way identical to the present case warranting the said decision to be taken as a precedent to follow the ratio laid down therein.
84. Equally the decision in A.P. Housing Board case would in no way be applicable to the present facts and circumstances as the circumstances under which such a decision was rendered are totally different. A perusal of the said decision reveals that payment of compensation was made dependent upon certain conditions to be fulfilled by the party, which is not envisaged under the Land Acquisition Act. On that ground, the said decision has been arrived at. However, such is not the case before this Court as the acquisition was not 57 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch dependent on any conditions to be fulfilled by the land owners. Therefore, the said decision would be in no way applicable to the case on hand.
85. The Division Bench, merely citing the aforesaid two decisions, without any provision of law guiding such a decision to be arrived at, had rendered a finding that delay in payment of compensation would lapse the acquisition proceedings. This Court respectfully disagrees with the aforesaid finding recorded by the Division Bench. Further, it is to be pointed out that the Hon’ble Apex Court had not confirmed the decision of the Division Bench on merits, but rather, it is a cryptic, in limine, dismissal, which would not be a binding precedent to follow the dictum laid down as it is on erroneous interpretation of the decisions and in stark violation of the provisions of Act, 1894.
86. In this regard, Section 31 of the Act, 1894, which pertains to payment of compensation or deposit of same in Court, which has been relied on by the learned single Judge, assumes significance. Section 31, as already extracted above, provides that on making the award u/s 11, the Collector shall tender payment of compensation and in the event of the land owners not consenting to 58 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch receive the compensation or if there is any dispute with regard to apportionment on account of title, the amount shall be deposited in the Court to which a reference u/s 18 would be submitted.
87. In the case on hand, the award itself reveals that there is some dispute with regard to title and in the absence of the petitioners cooperation to establish title, and therefore with regard to apportionment of compensation, necessarily the compensation amount has to be deposited in Court. True it is that erroneously the deposit in Court was not made. But, no murmur was made by the petitioners when the award was passed nor they raised any query with regard to reference being made, as only in the year 2007, reference in LAOP No,.8/2007 has been made nor had they made any claim for payment of compensation to the respondents, which has not been considered affirmatively.
88. In the aforesaid scenario, two Division Bench orders are before this Court and according to the petitioners, the order in W.A. No.999/95 is a nullity, as a fresh notification u/s 4 (1) had been issued and the Division Bench order in W.A. Nos.875 and 876/09 would nullify the earlier order. 59 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
89. It is to be pointed out that the order in W.A. Nos.875 and 876/09 has not spoken about the order in W.A. No.999/95. Further, the award was passed on 28.2.1989, the order in W.P. No.8888/84, in favour of the petitioners was passed on 19.7.94 and by the appeal in W.A. No.999/95, vide order dated 22.01.2001, the order in W.P. No.8888/84 was set aside and the acquisition proceedings was taken to its logical conclusion by the passing of the award on 28.2.1989.
90. Further, the whole case of the petitioners in W.A. No.875 and 876/09 is woven around the fact that there is enormous delay in payment of compensation and, therefore, the acquisition proceedings would lapse. The petitioners cannot blow hot and cold over the same matter. While on the one hand, the petitioners had gone on a selling spree, post the order in W.P. No.8888/84, while on the other hand, on the setting aside of the said order in W.A. No.999/95, the petitioners had the temerity not only to seek reconveyance of land, but on its rejection, had come up with a petition seeking lapsation of the acquisition proceedings on the ground of delay in payment of compensation. 60 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch When the petitioners had rejected receiving the compensation citing the pendency of the writ petition, the petitioners should have also awaited the orders in the writ appeal. However, the petitioners had sold a portion of the land between 1995 and 2004, which were the subject matter of acquisition, pending the writ appeal. Any act done by the petitioners on a matter which is sub judice, the onus is on the petitioners and the subsequent purchasers would not get any right to have their grievance ventilated. Once the petitioners have sold the land, to which they did not have title, as on acquisition, the lands vested with the Government, it does not lie in the mouth of the petitioners to claim that the delay in payment of compensation would render the acquisition lapsed.
91. Though judicial propriety warrants this Court to tag along with the decision of the Division Bench, however, for the reasons aforesaid, this Court is not in agreement with the order passed in W.A. Nos.875 and 876/09, as the acquisition proceedings had attained finality by passing of the order in W.A. No.999/95, which cannot be set aside, as the acquisition having become final about two decades back. In such circumstances, the order passed in W.A. Nos.875 and 876/09 is an unenforceable order, which does not have any legal 61 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch sanctity and, accordingly, the same could only be termed to be a nullity. In the aforesaid circumstances, there would be no lapsing of the acquisition proceedings and the finding in W.A. Nos.875 and 876/09 is wholly erroneous. Therefore, for all purposes, the acquisition undertaken in pursuance of the notification u/s 4 (1) of Act, 1894, issued on 12.11.1981 and the consequent declaration u/s issued on 31.3.1984 is proper and the same does not warrant any interference.
92. However, once the Court has come to the aforesaid finding, the only thing that stares on the face of the record is the subsequent notification issued u/s 4 (1) of Act, 1894, on 25.11.2013.
93. In this regard, it is the stand of the learned senior counsel for the petitioners that once a new notification u/s 4 (1) is issued, the earlier notification would merge with the present 4 (1) notification and all the acts would only be in pursuance to the present 4 (1) Notification and in such a backdrop, Sections 4 and 16 relating to Social Impact Assessment and Rehabilitation and Resettlement would arise and without the same being followed, it would be a clear infraction of 62 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch the provisions, which would render the acquisition bad. It is the further stand of the petitioners that Section 19 (7) prescribes an outer time limit of twelve months from the date of preliminary notification for the purpose of publishing the declaration and summary of the rehabilitation and resettlement proceedings, non-compliance of the same would rescind the notification u/s 4 (1).
94. Though such an argument, on the face of it, is persuasive, yet the same cannot be accepted for the simple reason that this Court, for the discussion made above, has held that the acquisition in pursuance to the notification issued u/s 4 (1) of Act, 1894 on 12.11.1981 and the Declaration u/s dated 31.3.1984 and the consequent award in Award No.6/88-89 dated 28.2.1989 as valid and the acquisition is proper and that there has been no lapsing of the acquisition proceedings. Once the earlier notification and declaration are upheld, it necessarily follows that the acquisition would be very much under Act, 1894 and it cannot be deemed to be under Act, 2013. Further, once the earlier acquisition is confirmed, there arises no necessity for the present notification, as no such lands, notified under the present 4 (1) notification exists for acquisition, as the said lands already vest with the Government.
63 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
95. Once this Court has categorically concluded that acquisition has been made under Act, 1894, the stand of the petitioners that there is non-compliance of Section 4 and Section 16 of Act, 2013, would pale into insignificance.
96. Though the fresh notification dated 25.11.13 is pressed into service pointing out the opinion of the learned Advocate General with regard to issuance of a fresh notification for acquisition of lands, it should be borne in mind that the ignorance of the requisitioning body cannot be taken in aid by the petitioners to bring the acquisition within the ambit of Act, 2013. Merely because the learned Advocate General had given an opinion to go ahead with a fresh notification, that would not render the earlier notification bad, as this Court has already held above that the lands have been acquired pursuant to the earlier notification dated 12.11.1981 and, therefore, there is no land as provided in the new 4 (1) notification to be acquired. When the acquisition itself had stood completed, as held by this Court above, on the heels of the decision of the Division Bench of this Court in W.A. No.999/95 and the consequent award dated 28.2.1989, the fresh notification issued u/s 4 (1) is nothing but an act void ab initio. The petitioners 64 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch cannot be allowed to take shelter under the present 4 (1) notification to claim compensation and other reliefs, including the relief of lapse of the acquisition proceedings under Act, 2013. There being no land to be acquired in the eye of law, the present notification u/s 4 (1) would be nothing but an exercise in futility and an act in ignorance. Such being the case, the consequential declaration u/s 6 issued under Act, 1894, which has been issued after coming into force of Act, 2013, would not have any legal legs to stand, as the Section 4 (1) notification itself has been held to be void ab initio.
97. Contention has been raised by the petitioners that in the absence of payment of compensation and the lapsation of the acquisition proceedings, in view of the fresh notification, Section 24 (1) of Act, 2013 would stand attracted. Section 24 of Act, 2013 had already been extracted above and sub-section (b) to Section 24 (1) clearly provides that where an award under Section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed. 65 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
98. In the case on hand, award has been passed as early as on 28.2.1989 and the acquisition proceedings had been allowed to attain finality. This Court has already held that there could be no lapsation of acquisition proceedings once an award is passed in terms of Section 11 of Act, 1894. In the case on hand, award having been passed on 28.2.1989, which has attained finality, the proceedings could be proceeded only under Act, 1894 and Act, 2013 would have no application.
99. The consequential question that falls for consideration is what would be the impact of Section 11-A and what would be the consequences of an award that is passed u/s 11 of Act, 1894, post the passing of the award.
100. Section 11-A provides that the Collector shall make an award under Section 11 within a period of two years from the date of publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. From the above, it is clear that except for the limitation period of two years, the Act does not provide for lapsation of the acquisition proceedings. Neither this Court, nor the learned senior counsel for 66 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch the petitioners is able to lay hands on any provision of law under Act, 1894 which provides for lapsing of the acquisition proceedings for any act other than passing of award within the prescribed period. Except for the aforesaid limitation, lapse of acquisition proceedings is not provided anywhere. In case of non-payment or non-deposit of compensation, payment of interest is provided u/s 34. For better appreciation, the relevant provision is quoted hereunder :-
“34. Payment of interest : When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of 9 per centum per annum from the time of so taking possession until it shall have been so paid or deposited :
Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry.”
101. From the aforesaid provision and the proviso attached thereto, it is abundantly clear that payment of interest is provided for in case where 67 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch compensation is not paid or deposited on or before taking possession of land and the rate of interest is also mandated.
102. One other striking point, which is evident from Section 34 is that it also provides a scenario where compensation is not paid or deposited on or before taking possession of the land. This clearly establishes that if compensation is not paid before taking possession, interest is payable at nine per centum per annum from the date of so taking possession till the said amount is paid or deposited and the proviso provides that if compensation is not paid or deposited within a period of one year from the date on which possession is taken, then interest at fifteen per centum per annum shall be payable from the date of expiry of the said period of one year. Such being the case, there is no lapse of acquisition proceedings even in the event of compensation not being paid, as consequential relief in case of non-payment of compensation is taken care of in the said provision itself. That being the legal position, when the petitioners were vigilant enough to seek for reconveyance in the year 2006, nothing prevented the petitioners from seeking payment of compensation along with interest in terms of Section 34 of Act, 1894. Having kept silent all through and not seeking for 68 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch compensation and allowing the period to pass on interminably and after exhausting all the avenues open for retrieving the lands from the acquisition proceedings and also creating encumbrances by alienating certain portion of the subject lands, the petitioners ingenuity has resulted in the filing of the second round of writ petition in the year 2007 and subsequent appeal in the year 2009 claiming lapse of the acquisition proceedings on account of non-payment of compensation.
103. The learned single Judge, in W.P. No.30186/2007, etc., has carefully considered the scope and ambit of the acquisition proceedings and the law on the said subject and also the decisions placed by either side, has rendered a categorical finding that acquisition proceedings will not lapse for non-payment of compensation and the avenue open to the petitioners is only to seek interest for belated payment. This Court is in respectful agreement with the said decision and, in fact, the order in the same lines as has been passed in W.P. No.31086/07, etc., should also be passed in the present petitions. 69 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
104. Further, the decision of the Division Bench of this Court in the case of B.Nagaraj – Vs – State of Tamil Nadu & Ors. (W.A. Nos.1204 of 2022, etc. Batch – Dated 09.06.2022) stares writ large on face of record, as in the said case, the Division Bench has categorically held that a purchase made subsequent to a Notification u/s 4 (1), the said purchaser does not have any right to question the acquisition process. For better appreciation, the relevant portion of the said order is quoted hereunder :-
“7. In that regard, the judgment of the Apex Court in the case of Meera Sahni Vs. Lt.Governor of Delhi (reported in 2008 (9) SCC
177), is also relevant, wherein it was held that a person entering to the sale or any injunction of the land under acquisition after issuance of the Notification under Section 4(1) of the Act of 1894, has no right to challenge the acquisition proceedings or seek lapse of the proceedings. The relevant paragraphs of the said judgment, are quoted hereunder for ready reference:
"17. When a piece of land is sought to be acquired, a notification under Section 4 of Land Acquisition Act is required to be issued by the State Government strictly in accordance with law. The said notification is also required to be followed by a declaration to be made under Section 6 of the Land Acquisition Act and with the issuance of such a notification any encumbrance created by the owner, or any transfer made after the issuance of such a notification would be deemed to be void 70 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch and would not be binding on the government. A number of decisions of this Court have recognized the aforesaid proposition of law wherein it was held that subsequent purchaser cannot challenge acquisition proceedings and also the validity of the notification or the irregularity in taking possession of the land after the declaration under Section 6 of the Act.
18. In U.P.Jal Nigam Vs. Kalra Properties (P) Ltd. (1996 (3) SCC 124), it was stated by this Court that (SCC p.126, para 3): "3. ...Having regard to the facts of this case, we were not inclined to further adjourn the case nor to remit the case for fresh consideration by the High Court. It is well settled law that after the notification under Section 4(1) is published in the Gazette any encumbrance created by the owner does not bind the Government and the purchaser does not acquire any title to the property."
19. In Sneh Prabha Vs. State of U.P. (1996 (7) SCC 426), it is stated as under (SCC p.430, para 5):
"5. ...It is settled law that any person who purchases land after publication of the notification under Section 4(1), does so at his/her own peril. The object of publication of the notification under Section 4(1) is notice to everyone that the land is needed or is likely to be needed for public purpose and the acquisition proceedings point out and an implement to anyone to encumber the land acquired thereunder. It authorizes the designated officer enter upon the land to do preliminaries etc. Therefore, any alienation of the land after the publication of the notification under Section 4(1) does not bind the government or 71 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch the beneficiary under the acquisition. On taking possession of the land, all rights, title and interests in land stand vested in the State, under Section 16 of the Act, free from all encumbrances and thereby absolute title in the land is acquired thereunder."
8. In the light of the ratio propounded by the Apex Court on the issue, so far as the writ petitioners are concerned, they have no right to challenge the Award issued in the year 1994, on the ground that it was after two years of the Declaration under Section 6 of the Act of 1894, having purchased the land much subsequent to the Notification issued under Section 4(1) of the Act of 1894.” (Emphasis Supplied)
105. From the ratio laid down above, it is clear that a purchase subsequent to the notification u/s 4 (1), the purchaser has no locus to question the acquisition. In the case on hand, it is further more bad, as the purchase has been made after the award. That being the case, the petitioner cannot question the acquisition process and also cannot claim that the acquisition process has lapsed as neither possession has been taken nor compensation has been paid.
106. For the reasons aforesaid, these writ petitions are dismissed with the following directions :-
72
https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch
i) Declaration issued u/s 6 of Act, 1894 on 16.12.2014 is a nullity as the acquisition proceedings stood completed vide notification dated 12.11.1981 and the declaration dated 31.03.1984;
ii) The order in W.A. No.999/1995 has attained finality in and by which the acquisition has been held to be valid and, therefore, the order in W.A. Nos.875 and 876/2009 having been passed in clear abhorrence to law, is null and void.
iii) Non-compliance of the provisions relating to Social Impact Assessment and Rehabilitation and Resettlement as provided under Act, 2013 would not vitiate the notification u/s 4 (1) dated 25.11.2013, as the acquisition has been made under Act, 1894.
iv) Acquisition having been made under Act, 1894, which has been confirmed by this Court, the petitioners would be entitled to receive compensation in terms of the provisions of Act, 1894, subject to fulfilling the conditions as provided for u/s 30 of Act, 1894.
v) In the circumstances of the case, there shall be no order as to costs.
10.08.2022 73 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch Index : Yes / No Internet : Yes / No GLN 74 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch To
1. The Secretary to Government Housing & Urban Development Department Government of Tamil Nadu Fort St. George, Chennai 600 009.
2. The Chairman Tamil Nadu Housing Board Nandanam, Chennai 600 035.
3. The District Collector District Collectorate Thumbankruchi Village Namakkal District.
4. The Special Tahsildar Salem Neighbourhood Scheme Salem.
75 https://www.mhc.tn.gov.in/judis ____________ W.P. No.4026/2014, etc. Batch M.DHANDAPANI, J.
GLN PRE-DELIVERY ORDER IN W.P. NO.4026 OF 2014, etc. Batch Pronounced on 10.08.2022 76 https://www.mhc.tn.gov.in/judis