Madras High Court
M.Kuppusamy vs The Secretary To Government on 31 August, 2021
WP.Nos.30946, 34568 to 34573, 34976 to 34982 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 31.08.2021
Coram:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
WP.Nos.30946, 34568 to 34573, 34976 to 34982 of 2015 and
MP.Nos.1,1,1,1,1,1,1,1,1,1,1,1,1, & 1 of 2015 and 2 of 2015
WP.No.30946 of 2015
M.Kuppusamy ...Petitioner
Vs.
1.The Secretary to Government,
Government of Tamil Nadu,
Highways Department,
Fort St.George,
Chennai 600 009
2.The District Collector,
Kancheepuram District,
Kancheepuram
3.The Revenue Divisional Officer,
Chengalpattu
4.M.Radhakrishnan
5.Manotha
6.Lakshmi ...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
to issue a writ of declaration declaring that the acquisition in respect of the
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land belonging to the petitioner and the respondents 4 to 6 in survey
No.72/3A33 measuring an extent of 10 cents in Thiruvidanthai Village,
Block I, Thirupporur Taluk, Kancheepuram District has become LAPSED
by virtue of Section 24 (2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 (Act 30 of 2013).
WP.No.30946 of 2015
For Petitioner : Mr.M.S.Subramanian
For Respondents
For R1 to 3 : Mr.M.R.Gokul Krishnan,
Government Advocate
WP.Nos.34568 to 34573 & 34976 to 34892 of 2015
For Petitioners : Mr.M.Raja Sekhar
For Respondents : Mr.M.R.Gokul Krishnan,
Government Advocate
COMMON ORDER
All the writ petitions have been filed challenging the acquisition
proceedings (notification under Section 4(1) of the Land Acquisition Act
issued vide GO.Ms.No.1547 dated 05.11.1992) on the ground that the
subject land was acquired for the purpose of expansion of East Coast Road
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invoking emergency clause under Section 17 of the Land Acquisition Act,
1894 (hereinafter called as 'the Act'). However, as per Section 17(3-A) of
the Act, the respondents ought to have tendered payment of 80% of the
compensation to the person interested or entitled thereon. Whereas the
petitioners were not paid any compensation even till today. Another ground
is that Section 4(1) notification was issued on 05.11.1992 and award was
passed on 29.11.1995 in award No.12 of 1995, however no notice was
served on the petitioners under Section 4 (1) or under Section 11 of the Act.
Compensation also has neither been paid to the land owners or interested
persons or deposited in the court. The petitioners are in possession and
enjoyment of their respective properties even till today. The petitioners have
put up construction and constructed dwelling house and the houses were
also assessed to the property tax and they are regularly paying property tax.
As per Section 24(2) of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013, the award
pertaining to the subject property has been made more than five years prior
to the commencement of the new Act i.e. Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
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WP.Nos.30946, 34568 to 34573, 34976 to 34982 of 2015
2013. Therefore, the entire acquisition proceedings have lapsed as per
Section 24 (2) of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013.
2. Common counter has been filed by the first respondent, which
revealed that the Public Works Department in the Government of Tamil
Nadu was bifurcated into Public Works Department and Highways
Department with effect from 01.08.1996 vide GO.Ms.No.326, Personnel
and Administrative Reforms (G) Department, dated 02.09.1996. As such,
the subject matter in the impugned Government Order now comes under the
administrative control of the Highways Department and the Additional
Chief Secretary to Government, Highways and Minor Ports Department
alone is competent to decide the claim of the petitioners and to give any
relief to the petitioners based on the outcome of the above writ petitions.
Hence, the first respondent is not a necessary party in the above writ
petitions and the petitioners have unnecessarily impleaded the first
respondent as a party to the above writ petitions. It is further stated that
even if the petitioners succeed in the writ petitions, the first respondent will
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WP.Nos.30946, 34568 to 34573, 34976 to 34982 of 2015
not be in a position to give any relief sought for by the petitioners since the
subject matter in the impugned Government Order is now under the
administrative control of the Highways Department.
3. While pending the writ petitions, this Court appointed an Advocate
Commissioner to conduct inspection with regards to the status of the
petitioners' properties to ascertain the distance between the East Coast Road
and the petitioners' properties. The Advocate Commissioner filed report and
stated that all the petitioners have constructed their houses and obtained
electricity service connection and living there. He also mentioned the
distance between the subject property of the respective petitioners and the
East Coast Road. In almost all the writ petitions, the distance between the
subject property and the East Coast Road is not below 15 meters distance.
The relevant portion of the reports filed by the advocate commissioner is
extracted hereunder:
W.P.No.34569 of 2015
“It was found that the above said property is situated in
East by East Coast Road and west by Kirama Natham salai
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comprising survey No.74. I have ascertained the distance of
the petitioner's property it is 45 meters away from the East
Coast Road”
W.P.No.34570 of 2015
“the above said property is adjacent to the Kirama
Natham salai comprising survey No.74 which is East by East
Coast Road. I have ascertained the distance of the petitioner's
property it is 30 meters away from the East Coast Road”
W.P.No.34571 of 2015
“It was found that the above said property is situated in
East by East Coast Road and west by Kirama Natham salai
comprising survey No.74. I have ascertained the distance of
the petitioner's property it is 46 meters away from the East
Coast Road”
W.P.No.34572 of 2015
“the above said property is adjacent to the Kirama
Natham salai comprising survey No.74 which is East by East
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Coast Road. I have ascertained the distance of the petitioner's
property it is 58.4 meters away from the East Coast Road”
W.P.No.34573 of 2015
“the above said property is adjacent to the Kirama
Natham salai comprising survey No.74 which is East by East
Coast Road. I have ascertained the distance of the petitioner's
property it is 93 meters away from the East Coast Road”
W.P.No.34976 of 2015
Distance between East coast road and petitioners properties is
20 meters
S.No.77/44B(petitioners property)
Total extent 17 cents
Acquired extent 12 cents
Concrete house 1131 sq.ft.(extent)
W.P.No.34977 of 2015
Distance between East coast road and petitioners properties is
15 meters
S.No.77/46B(petitioners property)
Total extent 21 cents
Acquired extent 15 cents
Concrete house 378 sq.ft.(extent)
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W.P.No.34978 of 2015
Distance between East coast road and petitioners properties
S.No.72/3A35A adjacent to the ECR
S.No.72/3A35A (petitioners property)
Total extent 8 cents
Acquired extent 8 cents
Concrete house 320 sq.ft.(extent)
W.P.No.34979 of 2015
Distance between East coast road and petitioners properties is
S.No.72/3A34 adjacent to the ECR
S.No.72/3A34 (petitioners property)
Total extent 8 cents
Acquired extent 8 cents
Concrete house 1650 sq.ft.(extent)
W.P.No.34980 of 2015
Distance between East coast road and petitioners properties is
S.No.77/42B – 35 meters
S.No.77/42B(petitioners property)
Total extent 5 cents
Acquired extent 5 cents
Concrete house 1660 sq.ft.(extent)
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W.P.No.34981 of 2015
Distance between East coast road and petitioners properties is
10 meters
S.No.77/47B(New subdivision No.77/47A petitioners property)
Total extent 5 cents
Acquired extent 5 cents
Concrete house 900 sq.ft.(extent)
W.P.No.34982 of 2015
Distance between East coast road and petitioners properties is
adjacent land to the ECR
S.No.72/3A26(subdivision No.72/3A26 A, 72/3A26, B, 72/3A26C)
(petitioners property)
Total extent 7 cents
Acquired extent 5 cents
W.P.No.34568 of 2015
“the above said property is situated East by the East
Coast Road and the property is adjacent to the petitioner's
brother's property measuring to an extent of 5 cents it is a
front portion of petitioner's property. I have ascertained the
distance of the petitioner's property only 18 meters away
from the East Coast Road”
4. Therefore, the petitioners are in possession and enjoyment of the
respective subject properties. It is also evident from the records produced by
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the respective petitioners such as family card, electricity consumption card,
voter ID and other revenue records to show that the petitioners are in
possession and enjoyment of their respective properties. Insofar as the
possession is concerned, notices under Section 12(2) of the Land
Acquisition Act dated 29.11.1995 were issued only on 26.07.2015 by the
third respondent.
5. On perusal of the said notice, revealed that on receipt of the said
notice, within 15 days from the date of receipt of notice, the respective land
owners shall appear before the third respondent and produce all the revenue
documents such as encumbrance certificate, patta and other title deeds, etc
and receive the compensation, failing which the compensation will be
deposited in the Court. The award was passed on 29.11.1995. Whereas the
notice under Section 12 (2) of the Land Acquisition Act was issued only on
26.07.2015. The respondents also failed to produce any evidence to show
that the award amount was deposited immediately after the award in the
revenue deposit or court deposit. Notice issued under Section 12(2) of the
Land Acquisition Act on 26.07.2015 shows that only to escape from the
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clutches of provisions under Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013. Therefore, the possession of the subject properties
has not been taken from the respective petitioners even till today. There is
no evidence to show that the compensation was also paid to the respective
petitioners by court deposit or by revenue deposit. In this regard, the learned
counsel for the petitioners relied upon the judgment rendered by the
Constitution Bench of the Hon'ble Supreme Court of India in the case of
Indore Development Authority Vs. Manoharlal and ors etc., reported in
(2020) 8 SCC 129, wherein it is held as follows:
“366. In view of the aforesaid discussion, we
answer the questions as under:
1. Under the provisions of Section 24(1)(a) in
case the award is not made as on 1.1.2014 the date
of commencement of Act of 2013, there is no lapse of
proceedings. Compensation has to be determined
under the provisions of Act of 2013.
2. In case the award has been passed within
the window period of five years excluding the period
covered by an interim order of the court, then
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proceedings shall continue as provided under
Section 24(1)(b) of the Act of 2013 under the Act of
1894 as if it has not been repealed.
3. The word or used in Section 24(2) between
possession and compensation has to be read as nor
or as and. The deemed lapse of land acquisition
proceedings under Section 24(2) of the Act of 2013
takes place where due to inaction of authorities for
five years or more prior to commencement of the said
Act, the possession of land has not been taken nor
compensation has been paid. In other words, in case
possession has been taken, compensation has not
been paid then there is no lapse. Similarly, if
compensation has been paid, possession has not
been taken then there is no lapse.
4. The expression 'paid' in the main part of
Section 24(2) of the Act of 2013 does not include a
deposit of compensation in court. The consequence
of non-deposit is provided in proviso to Section 24(2)
in case it has not been deposited with respect to
majority of land holdings then all beneficiaries
(landowners) as on the date of notification for land
acquisition under Section 4 of the Act of 1894 shall
be entitled to compensation in accordance with the
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provisions of the Act of 2013. In case the obligation
under Section 31 of the Land Acquisition Act of 1894
has not been fulfilled, interest under Section 34 of
the said Act can be granted. Non-deposit of
compensation (in court) does not result in the lapse
of land acquisition proceedings. In case of non-
deposit with respect to the majority of holdings for
five years or more, compensation under the Act of
2013 has to be paid to the "landowners" as on the
date of notification for land acquisition under
Section 4 of the Act of 1894.
5. In case a person has been tendered the
compensation as provided under Section 31(1) of the
Act of 1894, it is not open to him to claim that
acquisition has lapsed under Section 24(2) due to
non-payment or non-deposit of compensation in
court. The obligation to pay is complete by tendering
the amount under Section 31(1). Land owners who
had refused to accept compensation or who sought
reference for higher compensation, cannot claim that
the acquisition proceedings had lapsed under
Section 24(2) of the Act of 2013.
6. The proviso to Section 24(2) of the Act of
2013 is to be treated as part of Section 24(2) not part
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of Section 24(1)(b).
7. The mode of taking possession under the Act
of 1894 and as contemplated under Section 24(2) is
by drawing of inquest report/ memorandum. Once
award has been passed on taking possession under
Section 16 of the Act of 1894, the land vests in State
there is no divesting provided under Section 24(2) of
the Act of 2013, as once possession has been taken
there is no lapse under Section 24(2).
8. The provisions of Section 24(2) providing
for a deemed lapse of proceedings are applicable in
case authorities have failed due to their inaction to
take possession and pay compensation for five years
or more before the Act of 2013 came into force, in a
proceeding for land acquisition pending with
concerned authority as on 1.1.2014. The period of
subsistence of interim orders passed by court has to
be excluded in the computation of five years.
9. Section 24(2) of the Act of 2013 does not
give rise to new cause of action to question the
legality of concluded proceedings of land
acquisition. Section 24 applies to a proceeding
pending on the date of enforcement of the Act of
2013, i.e., 1.1.2014. It does not revive stale and time-
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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.”
6. Admittedly, the respondents have not taken possession of the
subject properties from the respective petitioners and also they were not
paid compensation. Therefore, on these grounds, the entire land acquisition
proceedings have lapsed as contemplated under Section 24 (2) of the Right
to Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013.
7. Accordingly, all the writ petitions are allowed and the entire
impugned proceedings are quashed. The reports of the Advocate
Commissioner shall form part and parcel of this order. Consequently,
connected miscellaneous petitions are closed. No order as to costs.
31.08.2021
Index : Yes / No
Internet : Yes
lok
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WP.Nos.30946, 34568 to 34573, 34976 to 34982 of 2015
G.K.ILANTHIRAIYAN, J.
lok
To
1.The Secretary to Government,
Government of Tamil Nadu,
Highways Department,
Fort St.George,
Chennai 600 009
2.The District Collector,
Kancheepuram District,
Kancheepuram
3.The Revenue Divisional Officer,
Chengalpattu
WP.Nos.30946, 34568 to 34573, 34976 to 34982 of 2015
31.08.2021
https://www.mhc.tn.gov.in/judis/
