Madras High Court
Smt.Rajarajeshwari Danesh ... vs The District Collector on 8 October, 2021
W.P.Nos.10170 and 11508 of 2014
and
W.P.No.17223 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 08.10.2021
Coram:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.Nos.10170 and 11508 of 2014
and
M.P.Nos.1 and 2 of 2014
and
W.P.No.17223 of 2015
and
M.P.Nos.1 and 2 of 2015
WP.No.10170 of 2014
1.Smt.Rajarajeshwari Danesh (died),
2.V.V.Venkata Narayanan
3.C.S.Dhanesh
4.Sangeetha
5.Mrinalini Dhanesh ...Petitioners in W.P.No.10170 of 2014
(P3 to P5 substituted as
Legal Representatives
of the deceased 1st petitioner
made in W.M.P.No.16045 of 2021
in W.P.No.10170/2014 by GKIJ).
Mrs.V.Sangeetha ...Petitioner in W.P.No.11508 of 2014
1.Smt.Rajarajeshwari Danesh (died),
1/14
https://www.mhc.tn.gov.in/judis/
W.P.Nos.10170 and 11508 of 2014
and
W.P.No.17223 of 2015
2.V.V.Venkata Narayanan
3.C.S.Dhanesh
4.Sangeetha
5.Mrinalini Dhanesh ...Petitioners in W.P.No.17223 of 2015
(P3 to P5 substituted as
Legal Representatives
of the deceased 1st petitioner
made in W.M.P.No.16048 of 2021
in W.P.No.17223/2015 by GKIJ).
Vs.
1.The District Collector,
Kancheepuram.
2.The Land Acquisition Officer and Sub Collector,
Saidapet,
Chennai-15.
3.The Land Acquisition Officer and
Revenue Divisional Officer,
Tambaram. ...Respondents in all W.Ps.
PRAYER in W.P.No.10170 of 2014: Writ Petition filed under Article 226
of the Constitution of India to issue a writ of Certiorarified Mandamus,
calling for the records relating to the Award No.1/95, dated 16.8.95 passed
by the 2nd respondent in respect of the land comprised in S.No.3/49A/1B,
Uthandi Village and quash the same and consequently quash the notice of
the 3rd respondent vide Roc.No.7893/2001 A dated 24.2.2014.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.10170 and 11508 of 2014
and
W.P.No.17223 of 2015
PRAYER in W.P.No.11508 of 2014: Writ Petition filed under Article 226
of the Constitution of India to issue a writ of Certiorari, calling for the
records relating to the Award No.1/95, dated 16.8.95 passed by the 2 nd
respondent in respect of the land comprised in S.No.3/49A/1B, Uthandi
Village and notice of the 3rd respondent vide Roc.No.7893/2001 A dated
24.2.2014 and quash the same.
PRAYER in W.P.No.17223 of 2015: Writ Petition filed under Article 226
of the Constitution of India to issue a writ of Certiorari to call for the
records relating to the Award No.1/95, dated 16.8.95 passed by the 2 nd
respondent in respect of the land comprised in S.Nos.3/8B, 3/9B, 3/24B,
3/26A2, 3/32B, 3/32C in Uthandi Village, Saidapet Taluk, Kanchipuram
district and quash the same and consequently quash the notice of the 3rd
respondent vide Roc.No.7893/2001 A dated 26.5.2015.
For Petitioners
in all W.Ps. : Mr.S.Vijayakumar
For Respondents
in all W.Ps. : Mr.M.R.Gokul Krishnan,
Government Advocate
https://www.mhc.tn.gov.in/judis/
W.P.Nos.10170 and 11508 of 2014
and
W.P.No.17223 of 2015
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 G.O.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
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 16.08.1995 in Award No.1 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
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W.P.Nos.10170 and 11508 of 2014
and
W.P.No.17223 of 2015
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,
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. The learned counsel for the respondents submitted 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,
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W.P.Nos.10170 and 11508 of 2014
and
W.P.No.17223 of 2015
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.
3. In similar writ petitions relating to the subject land, learned
Advocate Commissioner was appointed to conduct inspection with regards
to the status of the properties to ascertain the distance between the East
Coast Road and the properties. The learned 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.
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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W.P.Nos.10170 and 11508 of 2014
and
W.P.No.17223 of 2015
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 24.02.2014 were issued only on 07.03.2014 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 16.08.1995. Whereas the
notice under Section 12 (2) of the Land Acquisition Act was issued only on
24.02.2014. 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
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W.P.Nos.10170 and 11508 of 2014
and
W.P.No.17223 of 2015
Land Acquisition Act on 24.02.2014 shows that only to escape from the
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
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W.P.Nos.10170 and 11508 of 2014
and
W.P.No.17223 of 2015
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
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W.P.Nos.10170 and 11508 of 2014
and
W.P.No.17223 of 2015
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
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
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W.P.Nos.10170 and 11508 of 2014
and
W.P.No.17223 of 2015
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
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
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W.P.Nos.10170 and 11508 of 2014
and
W.P.No.17223 of 2015
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.”
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.
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W.P.Nos.10170 and 11508 of 2014
and
W.P.No.17223 of 2015
7. Accordingly, all the writ petitions are allowed and the entire
impugned proceedings are quashed. Consequently, connected miscellaneous
petitions are closed. No order as to costs.
08.10.2021
Index : Yes / No
Internet : Yes
Speaking / Non-Speaking Order
ssn
To
1.The District Collector,
Kancheepuram.
2.The Land Acquisition Officer and Sub Collector,
Saidapet,
Chennai-15.
3.The Land Acquisition Officer and
Revenue Divisional Officer,
Tambaram.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.10170 and 11508 of 2014
and
W.P.No.17223 of 2015
G.K.ILANTHIRAIYAN, J.
ssn
W.P.Nos.10170 and 11508 of 2014
and
W.P.No.17223 of 2015
08.10.2021
https://www.mhc.tn.gov.in/judis/
