W.A.No.1762 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.09.2022
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE P.D.AUDIKESAVALU
W.A.No.1762 of 2017 and CMP.No.22344 of 2017
1. The Secretary to Government,
Backward & Most Backward and
Minority Welfare Department,
Fort St. George,
Chennai-600 009.
2. The District Collector,
Tiruvallur.
3. The Revenue Divisional Officer,
RDO-Office Buildings,
Nagalapuram Road,
Tiruttani-631 209.
4. The Special Officer,
Adi Dravida Welfare,
RDO Office Building,
Tiruttani-631 209.
5. The Tahsildar,
Taluk Office,
Pallipattu Post,
Tiruvallur District. ... appellants
-vs-
1. K.Seethammal
2. K.K.Ponnusamy
3. K.K.Ramesh
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W.A.No.1762 of 2017
4. K.K.Selvi
5. K.K.Lakshmi
6. K.K.Manimegalai ... Respondents
Writ Appeal filed under Clause 15 of Letters Patent against the
order passed in W.P.No.14055/2015 dated 20.09.2017 by the learned
Single Judge of this Court.
For Appellants : Mr.Ramanlal, AAG
assisted by T.Arunkumar,
Govt. Advocate
For Respondents : Mr.AR.L.Sundaresan,
Senior Counsel
for Mr.S.N.Ramachandran
for Respondents 1, 2 and 4 to 6
Mr.N.Ravichandran for R3
JUDGMENT
(Judgment of the Court was pronounced by T.RAJA, J.) This Writ Appeal has been filed, challenging the impugned order dated 20.09.2017 passed in W.P.No.14055/2015 wherein the learned Single Judge allowed the writ petition as prayed for by the writ petitioners/respondents herein holding clearly therein that the District Collector has categorically admitted that since the land-in-question is not required for the acquisition proceedings, the acquisition proceedings can be recalled and the same could be also published in the Government Gazette.
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2. Mr.Ramanlal, learned Additional Advocate General assisted by Mr.T.Arunkumar, learned Government Advocate appearing for the appellants argued that when the land-in-question to an extent of 3.11 acres in Old Survey No.127 and New Survey No.36/2, Athimanjeri Village, Pallipattu Taluk, Thiruvallur District was acquired by issuing G.O.Ms.No.777, Social Welfare (BC III) Department dated 01.03.1982 by invoking Section 17 of the Land Acquisition Act, an award also has been passed on 25.03.1982. Aggrieved by the land acquisition proceedings, a Writ Petition in W.P.No.14055/2015 was filed taking multiple grounds that a) the physical possession of the land has not been taken; b) the compensation also has not been deposited in the manner known to law; and c) The District Collector also has given a recommendation that the land acquired was not required, therefore, the acquisition proceedings can be recalled. Although a detailed counter affidavit has been filed by the appellants herein making it clear that the ground taken by the writ petitioners before the learned Single Judge that the physical possession of the land has not been taken was a false statement because the physical possession of the land has been taken and the amount of compensation has been deposited in the Government account, however, the learned Single Judge refusing to accept the pleas made in the counter affidavit, allowed the writ petition, overlooking the recommendation made by the very same 3/16 https://www.mhc.tn.gov.in/judis W.A.No.1762 of 2017 Collector. Although the land-in-question was not required for the purpose for which it was acquired and at the same time, the same land can be utilized for some other purpose, the present writ appeal has been filed.
3. Arguing further, learned Additional Advocate General submitted that when the land acquisition proceedings were challenged by the owner and the other legal heirs by filing a civil suit unsuccessfully, after a long lapse of time, the writ petition filed ought not to have been entertained because the compensation amount was remitted before the Sub-Court, Kanchipuram in the year 1982 and for some defects indicated therein, although the same was returned for want of certain compliances, the same was remitted into the Government Account in the year 2004. In view of the continuous legal battle between the parties on title, this vital aspect has been completely overlooked by the learned Single Judge. Therefore, the impugned order passed by the learned Single Judge is liable to be set aside. When there was a dispute between the land owners, in view of the legal battle continuing between the parties on the ownership of the land, the amount of compensation could not be deposited in the Sub- Court, Kanchipuram, but the same was deposited in the Government Account in the year 2004. Therefore, the question of lapse of the land 4/16 https://www.mhc.tn.gov.in/judis W.A.No.1762 of 2017 acquisition proceedings does not arise. Resultantly, the application of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 also cannot be applied in the present case.
4. Concluding his arguments, learned Additional Advocate General contended that after the passing of the award dated 25.03.1982, in view of the title dispute between the parties, the amount of compensation was deposited in the Government Account in the year 2004 and thereafter, the physical possession of the land also has been taken over by the Tahsildar. In view of the reason that the physical possession of the land has been taken over from the land owners and subsequently, the amount of compensation also has been deposited in the Government Account in the year 2004, the land acquisition proceedings cannot be held to be lapsed as the appellants have complied with all the requisite criteria contemplated under the Land Acquisition Act, 1894.
5. Per contra, Mr.AR.L.Sundaresan, learned Senior Counsel for Mr.S.N.Ravichandran, learned Counsel appearing for the respondents/writ petitioners 1, 2, 4 to 6 opposing the above arguments submitted that when the 4(1) Notification was issued 5/16 https://www.mhc.tn.gov.in/judis W.A.No.1762 of 2017 seeking to acquire the land belonging to the writ petitioners to an extent of 3.11 acres in Old Survey No.127 and New Survey No.36/2, Athimanjeri Village, Pallipattu Taluk, Thiruvallur District by invoking Section 17 of the Act, as it is for the purpose of allotment of the house sites to the beneficiaries belonging to Boyers, Navidhars and Dhobies, an award also has been passed on 25.03.1982. As argued by the learned Additional Advocate General, when the award dated 25.03.1982 was passed, it cannot be a paper award because the law does not recognize passing of paper award. Passing of the award or objections of the award ought to have been accompanied by depositing of the amount of compensation that amount of compensation either should be tendered physically before the land owners or in the alternative, if there is any title dispute between the parties, it shall be deposited as required under Section 30 of the Land Acquisition Act, 1984. When it is an admitted case of the appellants herein that there was a title dispute between the land owners, therefore, they were unable to tender the amount of compensation to the land owners that should have been deposited as per Section 30 of the Act before the Sub-Court, Kanchipuram that has not been done.
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6. In support of his submission soliciting our notice to paragraph 4 of the counter affidavit filed by the appellants before the learned Single Judge, learned Senior Counsel for the writ petitioners 1, 2 and 4 to 6 submitted that the appellants have also clearly admitted in paragraph 4 that when the Acquisition Officer has remitted the award amount of Rs.28,612/- by the proceedings of the award passed in the above land acquisition proceedings under Sections 30 and 31(2) of the Land Acquisition Act, 1984, through bankers cheque for depositing in the Sub-Court, Kanchipuram, but the Sub-Court, Kanchipuram has returned the bankers cheque with due remarks on it which was later on complied with. However, the counter affidavit further says that due to efflux of time, the amount drawn for Court Deposit on the above said land-in-question could not be paid and remitted into the Government Account in 2004. Therefore, when the appellants herein have admitted before the learned Single Judge in their counter explicitly mentioning that they have not able to pay and remit the amount of compensation into the Government Account in 2004, the learned Single Judge has no other option except to accept the case of the writ petitioners. Therefore, based on the admitted version made by the appellants before the learned Single Judge in their counter as mentioned above, the learned Single Judge has allowed the writ petition holding inter alia that the District Collector, 7/16 https://www.mhc.tn.gov.in/judis W.A.No.1762 of 2017 Tiruvallur has made a recommendation to the Government to drop the acquisition proceedings on the ground that there were no takers for the reason that the lands were not suitable for use. Hence, it is clear that the physical possession of the land-in-question has not been taken over by the appellants, because either before the learned Single Judge or before this Court, the appellants have not even placed any documentary evidence to show that the physical possession has been taken over by them.
7. Learned Senior Counsel for the respondents 1, 2 and 4 to 6 further relying upon a decision of the Hon'ble Apex Court in Indore Development Authority vs. Manoharlal and others reported in (2020) 8 Supreme Court Cases 129 submitted that when the appellants have not deposited the compensation amount either in the Sub-Court, Kanchipuram or in the Government Account, then, the legal fiction in respect of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 will come into play. Again taking support from an order passed by this Court in the case of D.Balaraman vs. Government of Tamil Nadu rep. by its Secretary to Government and others reported in (2022) 2 MLJ 1 for the proposition that when the mode of taking physical possession under 1894 Act is not complied with, as 8/16 https://www.mhc.tn.gov.in/judis W.A.No.1762 of 2017 contemplated under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 by drawing inquest report/memorandum, the legal fiction under Section 24(2) would make the land acquisition proceedings lapsed once for all.
8. Mr.N.Ravichandran, learned Counsel for the 3rd respondent has adopted the arguments of the learned Senior Counsel for the respondents 1, 2 and 4 to 6.
9. We also find merits on the findings given by the learned Single Judge of this Court and also the argument advanced by the learned Senior Counsel for the respondents 1, 2 and 4 to 6. The reasons being that when the land-in-question to an extent of 3.11 acres in Old Survey No.127 and New Survey No.36/2, Athimanjeri Village, Pallipattu Taluk, Thiruvallur District was acquired invoking Section 17 of the Act for the purpose of providing house sites to Boyers, Navidhars and Dhobies, the law demands that an award has to be passed by paying compensation to the land owners. Admittedly, in the present case, the appellants, at no point of time have tendered the amount of compensation after passing of the award. Secondly, a perusal of paragraph 4 of the counter affidavit filed by the appellants 9/16 https://www.mhc.tn.gov.in/judis W.A.No.1762 of 2017 herein in the Writ Petition before the learned Single Judge also clearly speaks against the appellants that when the Land Acquisition Officer has remitted the award amount of Rs.28,612/- by the proceedings in the award passed under Sections 30 and 31(2) of the Land Acquisition Act, 1984, through bankers cheque for depositing in the Sub-Court, Kanchipuram, the said Sub-Court has returned the same with due remarks thereon. The relevant portion is given as under:
''4. In view of legal disputes on the acquired land, the Acquisition Officer has remitted the Award amount Rs.28612/- (28162+450) by the Proceedings of the Award passed in the above land under Section 30, 31(2) of Land Acquisition Act, 1984 through Bankers cheque for depositing in the Sub-Court, Kanchipuram. But the Sub-
Court, Kanchipuram has returned the bankers cheque with due remarks on it which was complied latter. Due to efflux of time, the amount drawn for Court Deposit on the above said land could not be paid and remitted into Government account in 2004.'' 10/16 https://www.mhc.tn.gov.in/judis W.A.No.1762 of 2017 A careful perusal of the above would clearly show that when the Land Acquisition Officer has remitted the award amount of Rs.28,612/- through the bankers cheque in the Sub-Court, Kanchipuram, the same was returned with remarks made therein and due to the efflux of time, the amount drawn for court deposit on the above said land could not be paid, therefore, the same was remitted in the Government account in the year 2004. But there is no evidence before this Court or before the learned Single Judge to substantiate the said contention.
10. Thirdly, when the appellants claim that they have taken physical possession of the land-in-question, in paragraph 366.7 of Indore Development Authority case, the Supreme Court has laid down the procedure to be followed which is also extracted here under:
''366.7 The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2).'' 11/16 https://www.mhc.tn.gov.in/judis W.A.No.1762 of 2017 Likewise, in similar and identical circumstance in the case of D.Balaraman vs. Government of Tamil Nadu rep. by its Secretary to Government and others reported in (2022) 2 MLJ 1 in paragraphs 10 and 11, this Court also (one of us being a party) has held thus :
''10. Secondly, coming to Section 47 of the Act which is also reproduced hereunder for the sake of ready reference, shows that if the Collector is prevented from taking physical possession of the land, he can enforce the surrender of the land to himself by applying to a Magistrate or to the Commissioner of Police. But in the present case, it appears that no such measures have been resorted to as per section 47 of the Act.
''47.Magistrate to enforce surrender :--If the Collector is opposed or impeded in taking possession under this Act of any land, he shall, if a Magistrate, enforce the surrender of the land to himself, and, if not a Magistrate, he shall apply to a Magistrate or (within the towns of Calcutta*, Madras* and Bombay*) to the Commissioner of Police and such Magistrate or Commissioner (as the case may be shall enforce the surrender of the land to the Collector.'' 12/16 https://www.mhc.tn.gov.in/judis W.A.No.1762 of 2017
11. In this regard, it is apposite to refer to the latest decision of the Hon'ble Apex Court in the case of Indore Development Authority v. Manoharlal and Others (supra), wherein it is held in para 366.7 that the mode of taking physical possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of Inquest Report/Memorandum. As we have highlighted above, when there was no such inquest report or memorandum or panchanama prepared, we are unable to agree with the approach adopted by the respondents in taking physical possession of the land-in-question.'' Therefore, in the present case, there was no evidence placed before us or before the learned Single Judge by any scrap of paper that the physical possession of the land-in-question has been taken over in the manner mentioned in paragraph 366.7 of Indore Development Authority Case which states that the mode of taking physical possession under Section 1894 Act would be by drawing a inquest report or memorandum. It is also to be noted that although the learned Additional Advocate General appearing for the appellants stated before us that the writ petitioners have voluntarily surrendered the land-in-question, but no evidence has been placed thereon also. 13/16
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11. Now coming to the question of payment of compensation, as we have indicated above, there was no any deposit made. Fourthly, the learned Single Judge also in his order in paragraph 9 has held thus:
''Admittedly, it has been categorically stated by the District Collector/second respondent in the above extracted portion that the land is not required and that the acquisition proceedings can be recalled and the same could be also published in the Government Gazette. As there is specific statement by the District Collector and that the land has not been acquired within a period of five years for the purpose of which it has been acquired, the contention of the respondents in the counter that the land is required for a different purpose, in order to utilise the same to the landless poor, cannot be accepted.'' Therefore, when the District Collector, Tiruvallur has made a recommendation to the Government that the beneficiaries were also not willing to receive the house sites for the reasons best known to them, the District Collector, the 2nd respondent therein also has recommended to drop the Land Acquisition Proceedings by recalling of 14/16 https://www.mhc.tn.gov.in/judis W.A.No.1762 of 2017 the proceedings issued in respect of the land-in-question. Hence, in our considered view, the learned Single Judge accepting the categorical admission made by the District Collector that the land in question acquired by issuance of 4(1) Notification cannot be used as the beneficiaries are also not willing to accept the house sites, has rightly held against the appellants herein. In view of the above, we find no infirmity or illegality in the impugned order passed by the learned Single Judge.
12. In the result, the Writ Appeal fails and the same is accordingly dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.
(T.R.J.,) (P.D.A.J.,)
14.09.2022
tsi
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W.A.No.1762 of 2017
T.RAJA, J.
AND
P.D.AUDIKESAVALU, J.
tsi
W.A.No.1762 of 2017
14.09.2022
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