Madras High Court
B.Krishnakumar vs The Secretary To Government Of ... on 4 October, 2021
WP.No.33753 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.10.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
WP.No.33753 of 2017
B.Krishnakumar ... Petitioner
Vs
1.The Secretary to Government of Tamilnadu,
Housing and Urban Development Department,
St.Fort George, Chennai – 600 009
2.The Chairman cum Managing Director,
Tamil Nadu Housing Board,
Nandanam, Chennai – 600 035
3.The Land Acquisition Officer and Special Tahsildar(L.A),
Unit-II, TNHB Scheme,
Tamil Nadu Housing Board,
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 the declaration made under
Section 6(1) of Land Acquisition Act, 1894 as per GO.Ms.No.132 LA(1)
Housing and Urban Development Department dated 24.07.2003 pursuant to
1/14
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notification made under Section 4(1) of Land Acquisition Act, 1894 and
award passed therein in Award No.1 of 2005 on 25.07.2005 by the third
respondent as lapsed in view of Section 24(2) of new Act namely Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013
For Petitioner : Mr.K.M.Venugopal
For Respondents
For R1 & 3: Mr.M.R.Gokul Krishnan,
Government Advocate
For R2 : Mr.M.Baskar,
Standing Counsel
ORDER
This Writ Petition is filed to issue a writ of declaration declaring
the declaration made under Section 6(1) of Land Acquisition Act, 1894 as
per GO.Ms.No.132 LA(1) Housing and Urban Development Department
dated 24.07.2003 pursuant to notification made under Section 4(1) of Land
Acquisition Act, 1894 and award passed therein in Award No.1 of 2005 on
25.07.2005 by the third respondent as lapsed in view of Section 24(2) of
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new Act namely Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013.
2. The petitioner's father derived title by partition deed for the
land comprised in survey No.49/2B covered under patta No.287 to an extent
of 1.14 acres and the land comprised in survey No.79/1A1B to an extent of
74 cents covered under patta No.278 and the land admeasuring 33 cents
comprised in survey No.74/1A1B covered under patta No.33 situated at
Perumalagaram village, Ambattur, Tiruvallur District. After his demise, his
mother executed settlement deed on 23.09.2009 vide document No.1559/09.
While being so, the respondents acquired the said land for the purpose of
establishing Ambattur Neighbourhood Scheme and issued 4(1) notification
under the Land Acquisition Act (hereinafter called as 'the Act') on
21.06.2002. Though it was issued in the name of his forefather, Mr.Subbiah
Naidu, he participated in the enquiry conducted under Section 5A of the Act
on 11.11.2002. Thereafter, declaration was made by the respondents under
Section 6 (1) of the Act as per GO.Ms.No.132 LA (1) Housing and Urban
Development Department dated 24.07.2003. Thereafter, objections were
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WP.No.33753 of 2017
received from the land owners and were sent to the requisition body.
Thereafter, reply to objections received by the requisition body on
07.02.2003 and the same was duly communicated to the land owners on the
same day. Thereafter, enquiry was conducted as contemplated under Rule
3(b) of the Act on 17.02.2003 and on the same day, 5A enquiry was
concluded. Draft declaration under Section 6 of the Act was approved in
GO.Ms.No.132 Hg & UD Department dated 24.07.2003. Thereafter Gazatte
notification of the draft declaration made under Section 6 was published in
the Tamilnadu Government Gazette on 25.07.2003. Draft declaration was
published in two tamil dailies on 25.07.2003 and award enquiry was
conducted on 15.06.2005.
3. On perusal of the award revealed that the petitioner attended
the enquiry and made his objections. After considering the objections, award
has been passed in Award No.1 of 2005 on 25.07.2005. Now the writ
petition has been filed challenging the acquisition proceedings on two
grounds. The petitioner has not been paid any compensation and possession
of the subject property also has not been taken over and as such the entire
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land acquisition proceedings have lapsed under Section 24(2) of the Right
to Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013.
4. The learned counsel for the petitioner would submit that even
according to the respondent, possession has been taken over on 15.03.2006
and the award amount has been deposited only on 20.09.2007. It is clear
violation of Section 17(3A) of the Act. After settlement deed, the petitioner
was issued patta on 10.11.2009 and he is in possession and enjoyment of the
subject property. He further submitted that the first respondent had passed
award in highly improper manner. The land in survey No.49/2 admeasuring
0.60.0 hectare is lower in each other than the adjoining lands using to the
removal of earth from the land for the manufacturing of bricks. The
reclamations charges for the filling up of the above lands worked out to
Rs.5,91,038/- exceeded the value of Rs.1,764/- per acre. Therefore, nominal
value of Rs.1/- per cent will be paid as compensation of the above land only.
Award was passed on 25.07.2005 and during the date of award, acquisition
officer fixed land value at Rs.1/- per cent is very low and it is violative as
per the Constitution of India.
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5. The second respondent filed counter and stated that the
petitioner was duly served all the notices and he participated in the enquiry
under Section 5(A) of the Act. After considering the objections and the
remarks sent by the acquisition body, overruled the objections and approved
declaration under Section 6 of the Act and published in the Tamilnadu
Government Gazattee on 25.07.2003. Notification under Sections 9(1) and
10 of the Act was published and the notice under Sections 9(3) and 10 of
the Act were duly served to all the land owners. In the award enquiry, the
petitioner and other land owners have participated and the award has been
passed in Award No.1 of 2005 on 25.07.2005. Subsequently, possession was
also taken over by the acquisition officer and handed over the possession of
the subject property to the requisition body on 15.03.2006. Award of
compensation has been deposited in the revenue deposit on 20.09.2007.
Therefore, both the grounds raised by the petitioners cannot be accepted and
the land acquisition proceedings never lapsed due to non deposit of
compensation amount and non taking of physical possession of the subject
property. The petitioner was duly served notice and the petitioner raised
objections for the acquisition proceedings and later his objections were
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overruled and award has been passed on 25.07.2005 in Award No.1 of 2005.
Once the award is passed, the subject lands shall vest with the Government
and the possession of the subject land had been taken over on 15.03.2006
and handed over to the second respondent herein. Insofar as the award
amount is concerned, they deposited as early as on 20.09.2007. Therefore,
the petitioner failed to satisfy the twin conditions as contemplated under
Section 24(2) of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013.
6. The grounds raised by the petitioner in this Writ Petition have
already been settled by the Hon'ble Supreme Court of India in the judgment
reported in (2020) 8 SCC 129 in the case of Indore Development Authority
Vs. Manoharlal and ors etc., which 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.
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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
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
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(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
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
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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 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
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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.”
7. The Hon'ble Supreme Court of India settled all proposition of
law in the above judgment including the grounds raised by the petitioner.
That apart, the acquisition proceedings have been completed and the subject
land was taken over by the government and the same was handed over to the
requisition body. Further the requisition body also deposited the
compensation as awarded by the Land Acquisition Officer. Therefore, the
petitioner failed to satisfy the twin requirements under Section 24 (2) of the
New Act, i.e., the physical possession of the land was not taken and the
compensation has not been paid/tendered/deposited in accordance with law.
In view of the dictum laid down by the Hon'ble Supreme Court of India, the
issues raised by the petitioner were settled and therefore, the acquisition
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proceedings have not been lapsed by operation of law under Section 24 (2)
of the new Act i.e., Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013. In view of the
settled position of law, the writ petition is devoid of merits and liable to be
dismissed.
8. Accordingly, the writ petition is dismissed. However, the
learned counsel for the petitioner submitted that the compensation amount
fixed by the respondents is very low and meager and it has to be enhanced
in accordance with law. Considering the said submission, the petitioner is
directed to raise objections before the authority concerned within a period of
two weeks from the date of receipt of copy of this order. On receipt of the
same, the authority concerned shall refer the same before the referral court.
Thereafter, the referral court is directed to complete the proceedings of the
determination of value of the land and pass orders within a period of six
months thereafter. No order as to costs.
04.10.2021
lok
Index:Yes/No
Speaking/Non speaking
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WP.No.33753 of 2017
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WP.No.33753 of 2017
G.K.ILANTHIRAIYAN,J.
lok
To
1.The Secretary to Government of Tamilnadu,
Housing and Urban Development Department,
St.Fort George, Chennai – 600 009
2.The Chairman cum Managing Director,
Tamil Nadu Housing Board,
Nandanam, Chennai – 600 035
3.The Land Acquisition Officer and Special Tahsildar(L.A),
Unit-II, TNHB Scheme,
Tamil Nadu Housing Board,
Nandanam, Chennai 600 035
WP.No.33753 of 2017
04.10.2021
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