Madras High Court
P.Subramani vs State Of Tamil Nadu Rep. By Its on 23 August, 2021
WP.No.25263 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.08.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.25263 of 2014
and M.P.Nos.1 of 2014, 1 of 2015
P.Subramani ... Petitioner
Vs
1.State of Tamil Nadu rep. by its
Secretary to Government Housing
and Urban Development Department,
Fort St. George,
Chennai - 600 009.
2.The Special Tahsildar,
Land Acquisition,
Neighbourhood Scheme of Salem,
Iyyan Thirumaligai,
Salem - 8.
3.Tamil Nadu Housing Board rep. by its
Managing Director,
331, Anna Salai,
Nandanam, Chennai - 600 035. ... Respondents
PRAYER:- Writ Petition is filed under Article 226 of the Constitution of
India praying to issue a writ of declaration declaring that the acquisition of
1/16
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WP.No.25263 of 2014
petitioner's land comprised in S.Nos.88/4A, 88/4C, 89/1B, 89/1C, 90/1 and
91/2 of Kottagoundampatti Village, Omaluk Taluk, Salem District made
under Section 4(1) of the Land Acquisition Act, 1894 in G.O.Ms.No.902
Housing and Urban Development Department dated 31.05.1991 and
consequential order passed under Section 6 in G.O.Ms.No.445 dated
16.07.1992, Housing and Urban Development S.C.(2) Department as
deemed to have been lapsed by applying Section 24 of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013.
For Petitioner : Mr.S.Doraisamy
For Respondents : Mr.Richardson Wilson,
1&2 Government Advocate
For Respondent : Mr.I.Sathish,
3 Standing counsel
*******
ORDER
This Writ Petition is filed to issue a writ of declaration declaring
that the acquisition of petitioner's land comprised in S.Nos.88/4A, 88/4C,
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WP.No.25263 of 2014
89/1B, 89/1C, 90/1 and 91/2 of Kottagoundampatti Village, Omaluk Taluk,
Salem District made under Section 4(1) of the Land Acquisition Act, 1894
in G.O.Ms.No.902 Housing and Urban Development Department dated
31.05.1991 and consequential order passed under Section 6 in
G.O.Ms.No.445 dated 16.07.1992, Housing and Urban Development
S.C.(2) Department as deemed to have been lapsed by applying Section 24
of the Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013.
2. The petitioner challenged the acquisition proceedings initiated
under Section 4(1) and 6 of the Land Acquisition Act, 1894 on the ground
that the subject land is very much in their possession by invoking Section 24
of the Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013.
3. The case of the petitioner is that the petitioner owned
agricultural land comprised in S.No.83/1E3, 88/4A, 88/4B, 88/4C, 88/7,
89/1B, 89/1C, 90/1B and 91/2 of Kottagoundampatti Village, Omaluk
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WP.No.25263 of 2014
Taluk, Salem District. While being so, the first respondent issued
notification Section 4(1) of Land Acquisition Act (hereinafter called Act)
dated 31.05.1991. The second respondent issued notice under Section 5(A)
of the Act, fixing the enquiry to be held on 10.10.1991.
4. In fact, one of the land owners and three others filed writ
petition before this Court in W.P.No.14406 of 1991 challenging the 4(1)
notification and the same was admitted and an interim stay was granted. In
respect of the petitioner's land, the petitioner filed W.P.No.18909 of 1992
challenging the declaration made under Section 6 of the Act. It was
dismissed on 27.01.1995 against which a Special Leave Petition was filed
before the Hon'ble Supreme Court in S.L.P.No.21734 of 1995 and the same
was also dismissed on 15.02.1996.
5. Another writ petition was filed in W.P.No.15353 of 2002
challenging the 4(1) Notification on the ground no award has been passed.
It was also dismissed as withdrawn by this Court by an order dated
03.12.2010. Again, the petitioner filed another writ petition in W.P.No.1851
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WP.No.25263 of 2014
of 2012 challenging the declaration under Section 6 of the Act and this
Court dismissed the writ petition by an order dated 11.12.2012.
6. The learned counsel for the petitioner raised the ground that the
possession of the subject property has not been taken over till today. That
apart, the petitioner is in possession and enjoyment of the subject property
and he also paying Electricity Service Connection and cultivating the
subject property. He further relied on the Constitution Bench of the Hon'ble
Supreme Court of India reported in (2020)8 Supreme Court Cases 129
Indore Development Authority -vs- Manoharlal and Others, the relevant
portions are extracted below:
"274. It was submitted on behalf of
landowners that under Section 24 the expression
used is not possession but physical possession.
In our opinion, under the Act of 1894 when
possession is taken after award is passed
under section 16 or under section 17 before the
passing of the award, land absolutely vests in the
State on drawing of Panchnama of taking
possession, which is the mode of taking
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WP.No.25263 of 2014
possession. Thereafter, any re-entry in
possession or retaining the possession is wholly
illegal and trespasser’s possession inures for the
benefit of the owner and even in the case of open
land, possession is deemed to be that of the
owner. When the land is vacant and is lying
open, it is presumed to be that of the owner by
this Court as held in Kashi Bai v. Sudha Rani
Ghose180. Mere re-entry on Government land
once it is acquired and vests absolutely in the
State (under the Act of 1894) does not confer,
any right to it and Section 24(2) does not have
the effect of divesting the land once it vests in the
State.
279. The court is alive to the fact that
are a large number of cases where, after
acquisition land has been handed over to
various corporations, local authorities,
acquiring bodies, etc. After depositing
compensation (for the acquisition) those bodies
and authorities have been handed possession of
lands. They, in turn, after development of such
acquired lands have handed over properties;
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WP.No.25263 of 2014
third party interests have intervened and now
declaration is sought under the cover of section
24(2) to invalidate all such actions. As held by
us, section 24 does not intend to cover such
cases at all and such gross misuse of the
provisions of law must stop. Title once vested,
cannot be obliterated, without an express legal
provision; in any case, even if the landowners’
argument that after possession too, in case of
non-payment of compensation, the acquisition
would lapse, were for arguments’ sake, be
accepted, these third party owners would be
deprived of their lands, lawfully acquired by
them, without compensation of any sort. Thus,
we have no hesitation to overrule the decisions
in Velaxan Kumar (supra) and Narmada Bachao
Andolan (supra), with regard to mode of taking
possession. We hold that drawing of Panchnama
of taking possession is the mode of taking
possession in land acquisition cases, thereupon
land vests in the State and any re-entry or
retaining the possession thereafter is unlawful
and does not inure for conferring benefits
under section 24(2) of the Act of 2013.
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WP.No.25263 of 2014
In Re Question No.5: the effect of interim order
of Court."
7. Per contra, the learned Government Advocate submitted that
the writ petition itself is not maintainable. The petitioner already filed two
writ petitions and went up to Hon'ble Supreme Court of India and failed.
Dehors the same, he is challenging the acquisition proceedings. Now, after
the New Act came into force, the petitioner has filed this writ petition in
view of Section 24 of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013. He also
produced the copy of the award dated 07.09.1995 and the possession
certificate dated 05.03.1999. On 05.03.1999, the second respondent handed
over the possession of the subject property to the third respondent. He also
relied upon the same Judgment and submitted that the petitioner had already
exhausted all remedies by way of two writ petitions and now, he cannot
again challenge the same proceedings under the New Act.
8. Admittedly, the petitioner as stated supra, filed writ petition and
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WP.No.25263 of 2014
went up to the Supreme Court of India challenging the acquisition
proceedings. The only ground raised by the learned counsel for the
petitioner is that the petitioner is still in possession and enjoyment of the
subject property and the possession certificate produced by the respondent
is not in consonance with the Panchanama as described by the Hon'ble
Supreme Court of India.
9. In this regard, the Hon'ble Supreme Court of India held that
when the possession is taken after the award is passed under Section 16 or
under Section 17 before the passing of the award, land absolutely vests in
State on drawing out Panchanama of taking possession, which is the mode
of taking possession. Thereafter, any re-entry in possession or retaining the
possession is wholly illegal and trespasser's possession inures for the benefit
of the owner and even in the case of open land, possession is deemed to be
that of the owner.
10. It is also relevant to refer the Constitution Bench of the
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WP.No.25263 of 2014
Hon'ble Supreme Court of India reported in (2020)8 Supreme Court Cases
129 Indore Development Authority -vs- Manoharlal and Others, and the
relevant portions are extracted below:
"289. In the opinion of this court it is
not the intendment of the Act of 2013 that those
who have litigated should get benefits of higher
compensation as contemplated under Section
24 benefit is conferred on all beneficiaries. It is
not intended by the provisions that in piecemeal
the persons who have litigated and have obtained
the interim order should get the benefits of the
provisions of the Act of 2013. Those who have
accepted the compensation within 5 years and
handed over the possession too, are to be
benefited, in case amount has not been deposited
with respect to majority of holdings. There are
cases in which projects have come up in part and
as per plan rest of the area is required for
planned development with respect to which
interim stays have been obtained. It is not the
intendment of the law to deliver advantage to
relentless litigants. It cannot be said hence, that it
was due to the inaction of the authorities that
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WP.No.25263 of 2014
possession could not be taken within 5 years.
Public policy is not to foment or foster litigation
but put an end to it. In several instances, in
various High Courts writ petitions were
dismissed by single judge Benches and the writ
appeals were pending for a long time and in
which, with respect to part of land of the projects,
efforts were made to obtain the benefit of Section
24(2). Parliament in our view did not intend to
confer benefits to such litigants for the
aforementioned reasons. Litigation may be
frivolous or may be worthy. Such litigants have to
stand on the strength of their own case and in
such a case provisions of Section 114 of the Act of
2013 and Section 6 of the General Clauses Act,
1897, are clearly attracted and such proceedings
have to be continued under the provisions of the
old Act that would be in the spirit of Section
24(1)(b) itself of the Act of 2013. Section 6(b) of
the General Clauses Act, 1897, provides that
repeal will not affect the previous operation of
any enactment so repealed or anything duly done
or suffered thereunder. Section 6(c) states that
repeal would not affect any right, privilege,
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WP.No.25263 of 2014
obligation or liability acquired, accrued or
incurred under any enactment so repealed. When
there is a provision itself in Section 24(1)(b) of
continuance of the proceedings where award has
been passed under the Act of 1894, for the
purposes of Section 24 as provided in Section
24(b), the provisions of Section 114 is clearly
attracted so as the provisions of Section 6 of the
General Clauses Act, 1897, to the extent of non
obstante clause of Section 24, where possession
has not been taken nor payment has been made,
there is a lapse, that too by the inaction of the
Authorities. Any court’s interim order cannot be
said to be inaction of the authorities or agencies;
thus, time period is not to be included for
counting the 5 years period as envisaged
in Section 24(2). As per proviso to Section 24(2),
where possession has been taken, but
compensation has not been paid or deposited
with respect to majority of land holdings, all the
beneficiaries would be entitled for higher
compensation only to that extent, the provisions
of Section 114 of the Act of 2013, would be
superseded but it would not obliterate the general
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WP.No.25263 of 2014
application of Section 6 of the General Clauses
Act, 1897, which deals with effect of repeal
except as provided in section 24(2) and its
proviso."
11. Accordingly, wherein possession has been taken, but the
compensation has not been paid or deposited with respect to the majority of
land holdings, all the beneficiaries would be entitled for higher
compensation. In the case on hand, already the award was passed in the
year 1995 and the compensation was deposited in a Sub Court as
contemplated under Sections 30 and 31(2) of the Land Acquisition Act,
1894 in the year 1996 itself.
12. It is also relevant to refer the Constitution Bench of the
Hon'ble Supreme Court of India reported in (2020)8 Supreme Court Cases
129 Indore Development Authority -vs- Manoharlal and Others, the
relevant portions are extracted below:
"366.9. Section 24(2) of the Act of 2013
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does not give rise to new cause of action to
question the legality of concluded proceedings of
land 319 acquisition. Section 24 applies to a
proceeding pending on the date of enforcement of
the Act of 2013, i.e., 1.1.2014. It does not revive
stale and time-barred claims and does not reopen
concluded proceedings nor allow landowners to
question the legality of mode of taking possession
to reopen proceedings or mode of deposit of
compensation in the treasury instead of court to
invalidate acquisition."
13. Accordingly, the provision under Section 24 of the New Act
does not give rise to new cause of action of concluded the Land Acquisition
Act and already the entire acquisition proceedings has been concluded and
in fact the petitioner already, on two occasions, challenged the Land
Acquisition Proceedings before this Court and who went upto the Hon'ble
Supreme Court of India. Therefore, the writ petition itself is not
maintainable and this writ petition is dismissed as devoid of merits.
14. Accordingly, this writ petition is dismissed. No order as to
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WP.No.25263 of 2014
costs. Consequently, the connected miscellaneous petitions are dismissed.
23.08.2021
rna
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
To
1.The Secretary to Government Housing
and Urban Development Department,
Fort St. George,
Chennai - 600 009.
2.The Special Tahsildar,
Land Acquisition,
Neighbourhood Scheme of Salem,
Iyyan Thirumaligai,
Salem - 8.
3.Tamil Nadu Housing Board rep. by its
Managing Director,
331, Anna Salai,
Nandanam, Chennai - 600 035.
G.K.ILANTHIRAIYAN,J.
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WP.No.25263 of 2014
rna
W.P.No.25263 of 2014
and M.P.Nos.1 of 2014, 1 of 2015
23.08.2021
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