Madras High Court
A.Palanisamy vs The State Of Tamil Nadu on 23 December, 2021
W.P.No.11029 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.12.2021
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.No.11029 of 2011
and M.P.No.2 of 2011
and W.M.P.Nos.28637 of 2017, 16585 and 16589 of 2021
A.Palanisamy ... Petitioner
-Vs-
1. The State of Tamil Nadu,
represented by its Secretary to Government,
Housing and Urban Development Department,
Fort St.George, Chennai - 9.
2. The Special Tahsildar,
Land Acquisition,
Housing Scheme Unit-III,
Coimbatore.
3. The Tamil Nadu Housing Board,
represented by its Managing Director,
Anna Salai, Nandanam,
Chennai - 600 035.
https://www.mhc.tn.gov.in/judis
Page 1 of 12
W.P.No.11029 of 2011
4. The Executive Engineer and
Administrative Officer,
Tamil Nadu Housing Board,
Coimbatore Unit, Tatabad,
Coimbatore - 641 018.
(R3 and R4 impleaded as per
order dated 23.12.2021 made in
W.M.P.No.27047 of 2021 in
W.P.No.11029 of 2011) ... Respondents
Prayer :- Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Certiorari, to call for the records in
relation to the notification issued under Section 4(1) of the Land Acquisition
Act, 1894 in G.O.Ms.No.878, dated 28.05.1991 (Housing and Urban
Development Department) and the declaration made under Section 6 of the
Land Acquisition Act, 1894 in G.O.Ms.No.473, dated 27.07.1992 (Housing
and Urban Development Department) by the first respondent and the award
proceedings in Award No.5 of 1994 dated 28.07.1994 made by the second
respondent under the Land Acquisition Act, 1894 and quash the same in
respect of the lands belonging to the petitioner, comprised in S.F.No.118/1A2,
situated at Vilankurichi Village, Coimbatore.
(Prayer amended vide order dated 13.08.2021 made in W.M.P.No.16582 of
2021 in W.P.No.11029 of 2011)
For Petitioner : Mr.AR.L.Sundaresan, Senior Counsel
for Mr.G.Sankaran and
Mr.S.Nedunchezhiyan
For R1 and R2 : Mr.C.Kathiravan
Special Government Pleader
For R3 and R4 : Dr.R.Gouri, Standing Counsel
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Page 2 of 12
W.P.No.11029 of 2011
ORDER
This Writ Petition has been filed for the issuance of Writ of
Certiorari, to call for the records in relation to the notification issued under
Section 4(1) of the Land Acquisition Act, 1894 in G.O.Ms.No.878, dated
28.05.1991 (Housing and Urban Development Department) and the declaration
made under Section 6 of the Land Acquisition Act, 1894 in G.O.Ms.No.473,
dated 27.07.1992 (Housing and Urban Development Department) by the first
respondent and the award proceedings in Award No.5 of 1994 dated
28.07.1994 made by the second respondent under the Land Acquisition Act,
1894 and quash the same in respect of the lands belonging to the petitioner,
comprised in S.F.No.118/1A2, situated at Vilankurichi Village, Coimbatore.
2. Heard Mr.AR.L.Sundaresan, learned Senior Counsel appearing for
the petitioner, Mr.C.Kathiravan, learned Special Government Pleader appearing
for the respondents 1 and 2 and Dr.R.Gouri, learned Standing Counsel
appearing for the respondents 3 and 4.
3. The land comprised in S.F.No.118/1A2 situated at Vilankurichi
Village, Coimbatore District, belong to the petitioner's father i.e. R.Arukutti
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W.P.No.11029 of 2011
Gounder. He died on 19.09.1993. Even before his death, he bequeathed the
subject property in favour of the petitioner by the registered sale deed, dated
16.08.1993, registered vide Document No.190 of 1993. When the respondents
visited the subject property and made enquiries with regard to persons
interested in the land, the petitioner came to understand about the acquisition
proceedings. On enquiry, the petitioner came to understand that the
notification under Section 4(1) of the Land Acquisition Act, 1894 (herein after
called as "the Act") in G.O.Ms.No.878, Housing and Urban Development
Department, dated 28.05.1991, which was followed by the declaration under
Section 6 of the Land Acquisition Act, 1894, made in G.O.Ms.No.473, Housing
and Urban Development Department, dated 27.07.1992.
4. On verification of the notification under Section 4(1) and Section 6
declaration of the Act, his father name was contained in respect of the subject
property. But his father or the petitioner were not served any notices as
contemplated under the Act. The petitioner specifically raised grounds that the
petitioner's father or in the name of the petitioner, no notices were served for
enquiry as contemplated under Section 5A of the Act before issuance of
declaration under Section 6 of the Act.
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W.P.No.11029 of 2011
5. The first respondent failed to give any prior approval for initiating
the acquisition proceedings as envisaged under Section 3(f)(VI) of the Act,
which is a mandatory one and violation thereof constitutes infirmity in the
entire allegation proceedings. The petitioner or his father were not served any
notices under Section 9(3) and 10 of the Act for the award enquiry. Even after
the award no notices were served as contemplated under Section 12(2) of the
Act.
6. While pending the writ petition, the petitioner also filed a petition
raising additional grounds as contemplated under Section 24(2) of the Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013, since, the possession of the subject property has not
been taken over and no award amount has been deposited in respect of the
subject property so far.
7. The second respondent filed a counter and revealed that the subject
property along with other properties ad-measuring 874.64.0 hectares comprised
in Survey No.118/1A1 etc., including the petitioner's land comprised in
S.F.No.118/1A2 situated at Vilankurichi, Coimbatore North Taluk, Coimbatore
https://www.mhc.tn.gov.in/judis
W.P.No.11029 of 2011
District, for the construction of house under the Ganapathy Neighbourhood
Scheme, Phase II. The Draft notification under Section 4(1) of Act was
approved in G.O.Ms.No.878, Housing and Urban Development Department,
dated 28.05.1991. The substance of the notification was published in
newspapers dailies on 23.06.1991 and 24.06.1991. The notice for the enquiry
as contemplated under Section 5A of the Act was issued and enquiry was
conducted on 16.09.1991. The copy of the statements of objections obtained
from the land owners during the enquiry were communicated to the Executive
Engineer and Administrative Officer, Coimbatore Housing Unit. After
considering the objections at the time of enquiry and approved the draft
declaration and published in the Tamil Nadu Government Gazette, dated
28.07.1992. The Draft Direction under Section 7 of the Act was approved and
published in the Tamil Nadu Government Gazette on 15.06.1994.
8. The Land Acquisition Officer in the award proceedings stated that
the notices under Section 9(3) and 10 of the Act, were served on the land
owners and interested persons. The award enquiry as contemplated under
Section 11 of the Act was conducted on 11.07.1994, 12.07.1994 and
13.07.1994. However, the petitioner's father did not appear for award enquiry.
Hence, the ownership of apportionment and alienable right for the extent of the
https://www.mhc.tn.gov.in/judis
W.P.No.11029 of 2011
subject land could not be decided and as such the entire compensation amount
at Rs. 1,17,508/- was ordered to be deposited in the Civil Court as
contemplated under Section 30 and 31(2) of the Act. Because of the interim
order passed by this Court in this writ petition, the possession of the land has
not been taken over by the requisition body. Therefore, there is absolutely no
answer for the service of notices as contemplated under Section 5A, 9(3), 10
and 12(2) of the Act even passing the award.
9. Dr.R.Gouri, the learned Standing Counsel for the respondents 3
and 4, vehemently contented that the present writ petition has been filed after a
period of 22 years and as such the writ petition is not maintainable. Further she
contended that though the petitioner's father died during the acquisition
proceedings, it was not indicated and the revenue records were not mutated in
the names of the legal heirs i.e. the petitioner.
10. In support of her contentions, she relied upon the judgments in
1996 (1) SCC 250 in the case of "State of T.N and others Vs. L.Krishnan and
others", in 1996 (11) SCC 501 in the case of "Municipal Corporation of
Greater Bombay Vs. Industrial Development Investment Co. Pvt. Ltd and
others", in 2008 (3) SCC 462 in the case of "Hindustan Zinc Ltd Vs.
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W.P.No.11029 of 2011
Bhagwan Singh Bhati and others", in 2005 6 SCC 493 in the case of "Govt.
Of A.P. and others Vs. Kollutla Obi Reddy and others", in 2008 (4) SCC 695
in the case of "Swaika Properties (P) Ltd and another Vs. State of Rajasthan
and others", in 2006 (11) SCC 464:2007 (1) SCC (L&S)500 in the case of
"U.P.Jal Nigam and another Vs. Jaswant Singh and another".
11. Admittedly, there is no piece of paper produced by the respondents
to show that the petitioner or his father or the interested persons on the subject
land were served notice under Section 5A for the enquiry. The counter reveals
that they simply followed the usual formalities and after due publication and
services of required notices. But as stated supra, no piece of evidence produced
by the respondents to prove the same.
12. Even in the name of the dead person, no notices were served under
Section 9(3) and 10 of the Act before passing an award. Even after passing an
award on 28.07.1994 in Award No.05 of 1994, no notice was served on the
petitioner or his deceased father or any interested persons in respect of the
subject property as contemplated under Section 12(2) of the Act.
13. A perusal of the award also revealed that the petitioner's father is
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W.P.No.11029 of 2011
the notified person under Section 4(1) of the Act. He did not appear for award
enquiry, hence, the ownership of apportionment and alienable right of the
subject property could not be decided. The entire compensation for the subject
property is ordered to be deposited in the Civil Court as contemplated under
Section 30 and 31(2) of the Act. There is absolutely no evidence to show that
after the award, the award amount has been deposited before the Civil Court.
This Court while admitting this writ petition ordered an interim stay of
dispossession alone. Therefore, there is absolutely no impediment for the
respondents to deposit the award amount as ordered by the Land Acquisition
Officer in Award No.05 of 1994. dated 28.07.1994.
14. Even till today, the respondents did not deposit the award amount
in respect of the subject property. Insofar as the possession is concerned,
admittedly, the petitioner is in possession and enjoyment of the same.
Therefore, the 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. That apart, as stated
supra the respondents failed to follow any procedure as contemplated under the
Act and acquired the subject land.
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W.P.No.11029 of 2011
15. In view of the above, the notification issued under Section 4(1) of
the Land Acquisition Act, 1894 in G.O.Ms.No.878, dated 28.05.1991 (Housing
and Urban Development Department) and the declaration made under Section 6
of the Land Acquisition Act, 1894 in G.O.Ms.No.473, dated 27.07.1992
(Housing and Urban Development Department) by the first respondent and the
award proceedings in Award No.5 of 1994 dated 28.07.1994 made by the
second respondent under the Land Acquisition Act, 1894, is hereby quashed.
16. Accordingly, this writ petition stands allowed. Consequently,
connected Miscellaneous Petitions are closed. There shall be no order as to
costs.
23.12.2021
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
mn
https://www.mhc.tn.gov.in/judis
W.P.No.11029 of 2011
To
1. The Secretary to Government,
The State of Tamil Nadu,
Housing and Urban Development Department,
Fort St.George, Chennai - 9.
2. The Special Tahsildar,
Land Acquisition,
Housing Scheme Unit-III,
Coimbatore.
3. The Managing Director,
The Tamil Nadu Housing Board,
Anna Salai, Nandanam,
Chennai - 600 035.
4. The Executive Engineer and
Administrative Officer,
Tamil Nadu Housing Board,
Coimbatore Unit, Tatabad,
Coimbatore - 641 018.
https://www.mhc.tn.gov.in/judis
W.P.No.11029 of 2011
G.K.ILANTHIRAIYAN, J.
mn
W.P.No.11029 of 2011
and M.P.No.2 of 2011
and W.M.P.Nos.28637 of 2017, 16585 and 16589 of 2021
23.12.2021
https://www.mhc.tn.gov.in/judis
