Madras High Court
V.Sivakumar vs The State Of Tamil Nadu on 7 October, 2021
W.P.Nos.9349 and 9350 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 07.10.2021
Coram:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.Nos.9349 and 9350 of 2018
V.Sivakumar ...Petitioner
in W.P.No.9349 of 2018
N.Suseendran ...Petitioner
in W.P.No.9350 of 2018
Vs.
1. The State of Tamil Nadu,
Represented by the Commissioner
and Secretary to Government,
Housing and Urban Development
Department, Fort St.George,
Chennai- 600 009.
2. The Tamil Nadu Housing Board,
Represented by its Managing Director,
Tamil Nadu Housing Board,
No.493, Anna Salai, Nandanam,
Chennai-600 035.
3. The Special Tahsildar(L.A.)
Housing Schemes No.1,
Tatabad, Coimbatore – 12.
1/18
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W.P.Nos.9349 and 9350 of 2018
4.The Executive Engineer cum
Administrative Officer,
Coimbatore Housing Unit,
Tamil Nadu Housing Board,
Tatabad, Coimbatore-600 012.
5.The Zonel Deputy Tahsildar,
O/o. The Tahsildar,
Anuppar Palayam,
Coimbatore North Taluk,
Coimbatore District. ...Respondents in both W.Ps.
COMMON PRAYER: Writ Petitions have been filed under Article 226 of
the Constitution of India to issue a Writ of Declaration, declaring that the
entire land acquisition proceedings initiated under the Land Acquisition
Act, 1894, (Old Act) in G.O.Ms.No.597 dated 14.03.83 issued u/s.4(1) of
the Land Acquisition Act, 1894, the declaration made in G.O.Ms.No.387
dated 12.3.86 and the award passed in Award No.1/88 dated 16.12.1988 in
respect of the land of an extent of Acre 0.57 ½ cents belonging to the
petitioner comprised in S.F.No.84/2, Ganapathy Village, Coimbatore
District, as lapsed in view of section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013(Act 30/2013) and consequently direct the 4th
respondent to mutate the revenue records and issue patta in the name of the
petitioner without insisting for no objection certificate from the 2nd
respondent.
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W.P.Nos.9349 and 9350 of 2018
For Petitioner
in both W.Ps. : Mr.R.N.Amarnath
For Respondents 1, 3 and 5
in both W.Ps. : Mr.M.R.Gokul Krishnan,
Government Advocate
For Respondents 2 and 4
in both W.Ps. : Dr.R.Gouri,
Standing Counsel
COMMON ORDER
Both the Writ Petitions have been filed to issue a Writ of Declaration,
declaring that the entire land acquisition proceedings initiated under the
Land Acquisition Act, 1894, (Old Act) in G.O.Ms.No.597 dated 14.03.83
issued u/s.4(1) of the Land Acquisition Act, 1894, the declaration made in
G.O.Ms.No.387 dated 12.3.86 and the award passed in Award No.1/88
dated 16.12.1988 in respect of the land of an extent of Acre 0.57 ½ cents
belonging to the petitioner comprised in S.F.No.84/2, Ganapathy Village,
Coimbatore District, as lapsed in view of section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013(Act 30/2013) and consequently direct the 4th
respondent to mutate the revenue records and issue patta in the name of the
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W.P.Nos.9349 and 9350 of 2018
petitioner without insisting for no objection certificate from the 2nd
respondent.
2. The case of the petitioners is that the first petitioner's father and the
second petitioner's father are brothers and they had established an Industry
in the year 1976 in the name and style of M/s.Siva Foundry, in which, they
are partners. They had jointly purchased 1.5 acres of land comprised in
S.F.No.84/2 situated at Ganapathy Village, Coimbatore Taluk, Coimbatore
District by way of a Registered Sale Deed dated 6.6.1980, vide Document
No.2053/80. Since the second petitioner's father viz., Mr.A.S.Narayanasamy
retired from the partnership firm, the first petitioner's father alone had
running the partnership firm and the property was divided amongst them
and the extent of acre 0.57 ½ cents of land in southern portion was allotted
to his father's brother Mr.A.S.Narayanasamy. After the demise of the first
petitioner's father Venugopal, the petitioners along with the family members
have executed a partition deed. Insofar as the first petitioner's father's
brother's family is concerned, after the death of the first petitioner's father,
their family members have divided the property and mutated the revenue
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W.P.Nos.9349 and 9350 of 2018
records in their favour. After the family arrangements between the
petitioners' family members, they executed settlement deed and other release
deed and the sub-land was allotted to the petitioners and the petitioners
alone are absolute owners of the property. Thereafter, the patta was issued
for the property and they have been regularly paying property tax.
Originally an extent of 2.30 acres of the said land comprised in S.F. No.84/2
situated at Ganapathy Village is sub-divided for the purpose of providing
house for Ganapathy Neighbourhood Project. 4(1) notification of the Land
Acquisition Act, 1894, was issued on 14.03.1987 vide G.O.Ms.No.597.
Subsequently, declaration under Section 6 of the Act came to be made in
G.O.Ms.No.387 and the declaration came to be issued on 12.03.1986.
However, the said acquisition proceedings were challenged by the first
petitioner's father and the other land owners in W.P.No.3387 of 1986 and
the same was allowed on 23.10.1991 along with a batch of writ petitions.
However, aggrieved by the same, the 1st respondent herein has filed an
appeal in W.A.No.731 of 1995 and the same was allowed by the Hon'ble
Division Bench of this Court on 03.06.2002.
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3. The learned counsel for the petitioners now raised the grounds in
both the writ petitions that the subject property is well within the petitioners'
property and it has not been taken by the respondents and the award was
passed in Award No.1/1988 on 16.12.1988. Thereafter, no notice was
served to the petitioners, their father or their family members under Section
12(2) of the Act, either to his father or to his family members. Insofar as the
award amount is concerned, though the respondents stated that they have
deposited the compensation amount in the Civil Court, there is no proof to
show in which Court and on which date they have deposited the amount.
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. He would further
submit that as per Section 24(2) of the said Act, if possession of the land
was not taken or compensation amount was not paid in respect of the
acquisition proceedings initiated under the Land Acquisition Act, 1894 (old
Act), for which award was made 5 years or more prior to the
commencement of the Section 24(2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
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W.P.Nos.9349 and 9350 of 2018
2013, the entire acquisition proceedings initiated under the old Act will
become lapsed.
4. In the case on hand, the award was made in the year 1988. So far
neither the possession was taken nor the compensation was paid or
deposited in the Court as required under the old Act. Therefore, the entire
acquisition proceedings has become lapsed in respect of the petitioners land.
In this regard, he relied upon the following judgments :
1.Hari Ram v. State of Haryana and others reported in
(2010) 3 SCC 621.
2.Kulsum R.Nadiadwala v. State of Maharashtra reported
in (2012) 6 SCC 348.
3.Union of India v. Gopal Das Bhagwan Das and others
reported in (2020) SCC Online SC 217.
4.Pune Municipal Corporation v. Harakchand Misirimal
Solanki and others reported in (2014) 3 SCC 183
5.Government (NCT of Delhi) v. Manau Dharam Trust
and another reported in (2017) 6 SCC 751.
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6.K.Saraswathi v. State of Tamil Nadu reported in (2020)
SCC Online Mad 2475.
7. M.Palanisamy v. State of Tamil Nadu reported in (2020)
SCC Online Mad 2476.
8.BEML Employees House Building Cooperative Society
Ltd., v. State of Karnataka reported in (2005) 9 SCC 248.
9.Indore Development Authority v. Manoharlal and others
reported in (2020) 8 SCC 129.
5. Per contra, the learned Standing Counsel appearing for the
2nd respondent submitted that the 2nd respondent filed counter affidavit,
which reveals that both the writ petitions have been filed after three decades
from the date of 4(1) notification in G.O.Ms.No.597, dated 14.03.1983.
Before passing the award, the father of the first petitioner herein has
challenged the acquisition proceedings and though it was initially allowed
by the learned Single Judge, thereafter, the acquisition proceedings was
upheld by the Hon'ble Division Bench of this Court, by an order dated
03.06.2002. Further, it reveals that notification under Section 4(1) of the
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W.P.Nos.9349 and 9350 of 2018
Land Acquisition Act, were served to all the persons. Siva Foundry has sent
their representation through post to drop the Land Acquisition proceedings
and they did not appear for award enquiry. After passing an award, the
notice under Section 12(2) of the Land Acquisition Act was also served to
notified persons. Even then, they were not turned to receive the
compensation amount of Rs.2,36,917.95 for the whole award deposited in
Civil Court in LAOP No.162 of 1991, dated 22.04.1991. Insofar as the
possession of the subject property is concerned, while pending the writ
petition, the petitioners obtained stay of dispossession of the land and
therefore, the physical possession of the property has not been taken over
from the petitioners. She would further state that in a neighbourhood
scheme except the subject land, entire land has been utilised for the
formation of Ganapathy neighbourhood scheme and as such, the present
land is very much required to complete the scheme. In view of the above,
the petitioners have failed to fulfill the exact land demanded under Section
24(2) of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013.
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W.P.Nos.9349 and 9350 of 2018
6. Heard the learned counsel for the petitioners, learned Government
Advocate appearing for the first, third and fifth respondents and the learned
Standing Counsel appearing for the second and fourth respondents.
7. The Land Acquisition proceedings were initiated for the formation
of Ganapathy Neighbourhood Schemes at Ganapathy Village, Coimbatore,
the Land Acquisition proceedings under Section 4(1) of the Act was issued
on 14.03.1983. Subsequently, a declaration under Section 6 of the Act came
to be passed on 12.03.1986. At this juncture, the father of the first petitioner
and other land owners challenged the acquisition proceedings and obtained
interim stay of dispossession of their lands. All the writ petitions were
allowed by order dated 23.10.1991 and the batch of Writ Appeals in
W.A.No.731 of 1995 are also allowed and upheld the acquisition
proceedings by order dated 03.06.2002. Even then, the respondents did not
take any steps to take possession of property even by symbolic possession.
Pending these writ petitions, the respondents have passed an award in
Award No.1/1988 dated 16.12.1988. Though they stated in the counter that
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they have deposited the award amount in the civil court in LAOP
No.162/91, they failed to mention on the file of which Court and on which
date they deposited the amount. A perusal of records reveals that the
amount deposited vide receipt dated 22.04.1991 in Sub-Court, Coimbatore,
but, no notice was served on the petitioners under Section 12(2) of the Act,
after passing the award. Therefore, no one has appeared before the
respondents to receive the compensation. However, even according to the
respondents, the compensation amount has been deposited only on
22.04.1991. Admittedly, the petitioners are in possession and enjoyment of
the subject property. It is also evident from the records produced by the
petitioners that patta, kist receipts and property tax assessment, the extract
from the Tamil Nadu Slum Clearance Board and Electricity service
connection payment details in respect of the subject property. It is also seen
that under the same notification, some of the land owners have succeeded in
challenging the acquisition proceedings and they are in possession and
enjoyment of their respective lands, after constructing house and factory
premises.
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W.P.Nos.9349 and 9350 of 2018
8. 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
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
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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
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
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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
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
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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-
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.”
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9. After elaborate discussions, it is held 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 2013 Act.
10. Whereas, in the case on hand, after allowing the Writ Appeals
filed by the respondents by an order dated 03.06.2002, they have not taken
even symbolic possession from the petitioners in respect of the subject
property. Even today, the petitioners are in possession and enjoyment of the
subject property. Therefore, the respondents failed to take symbolic
possession of the subject property and the entire 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, the petitioners were not served notice
under Section 12(2) of the Act, after passing an award, dated 16.02.1988.
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11. In view of the above discussion, the entire land acquisition
proceedings have been lapsed under Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013. Respondents 3 and 5 are directed to mutate the
revenue records and issue patta in the name of the petitioners for their
respective subject lands without insisting for No Objection Certificate from
the 2nd respondent.
12. In the result, both the writ petitions are allowed. Consequently,
connected miscellaneous petitions are closed. There is no order as to costs.
07.10.2021
Index : Yes / No
Internet : Yes
Speaking / Non-Speaking Order
ssn
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W.P.Nos.9349 and 9350 of 2018
G.K.ILANTHIRAIYAN, J.,
ssn
To
1. The Commissioner
and Secretary to Government,
Housing and Urban Development
Department, Fort St.George,
Chennai- 600 009.
2. The Managing Director,
The Tamil Nadu Housing Board,
Tamil Nadu Housing Board,
No.493, Anna Salai, Nandanam,
Chennai-600 035.
3. The Special Tahsildar(L.A.)
Housing Schemes No.1,
Tatabad, Coimbatore – 12.
4.The Executive Engineer cum
Administrative Officer,
Coimbatore Housing Unit,
Tamil Nadu Housing Board,
Tatabad, Coimbatore-600 012.
5.The Zonel Deputy Tahsildar,
O/o. The Tahsildar, Anuppar Palayam,
Coimbatore North Taluk,
Coimbatore District.
W.P.Nos.9349 and 9350 of 2018
07.10.2021
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