Madras High Court
R.Krishnamoorthy vs The State Of Tamil Nadu on 8 October, 2021
W.P.No.40298 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.10.2021
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.No.40298 of 2015
and
M.P.No.1 of 2015
R.Krishnamoorthy ... Petitioner
-Vs-
1. The State of Tamil Nadu,
Represented by its Special Secretary
to Government,
P.W.(High Ways) Department,
St.George Fort,
Chennai – 600 009.
2. Land Acquisition Officer &
Special Tahsildar (Land Acquisition) Unit-I,
East Coast Road, widening scheme,
Big Melamaiyur, Chengalpet.
3. Revenue Divisional Officer/Sub-Collector,
Chengalpet District,
Chengalpet.
4. The District Collector,
Kancheepuram District,
Kancheepuram.
5. The Revenue Divisional Officer,
Thiruporur Division,
Kancheepuram District. ... Respondents
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W.P.No.40298 of 2015
Prayer :- Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Declaration, declaring that the Land
Acquisition Proceedings initiated by issuance of notification under Section
4(1) in G.O.(M.s).No:1491/Pw.Hs-2/Department, dated 27.10.1992 and
published in the Tamil Nadu Gazette, dated 30.10.1992 followed declaration
made under Section 6 in G.O.(M.s).No.1164, P.W.(Highways) (HS2) dated
06.08.1993 as published in Part-II, Section-2 of Tamil Nadu Government
Gazette (Extraordinary) dated 13.08.1993 respectively culminating into
issuance of notice under Section 12(2) of the Land Acquisition Act, 1894
issued by the R.D.O. Chengalpet/third respondent herein, signed by him on
21.08.2015, in respect of the petitioner's land comprised in S.No:338/5B2,
measuring an extent of 34 cents, situate in Thiruvidanthai group, Vada
Nemmeli village then Chengalpet taluk and district and now in Thiruporur
Taluk, Kancheepuram District as having statutorily lapsed in terms of Section
24(2) of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 and non-est in law.
For Petitioner : Mr.V.Ayyadurai, Senior Counsel
for Mr.P.Muthukumaarasaamy
For Respondents : Mr.Richardson Wilson
Government Advocate.
ORDER
This Writ Petition has been filed for the issuance of a Writ of
Declaration, declaring that the Land Acquisition Proceedings initiated by
issuance of notification under Section 4(1) in G.O.(M.s).No.1491/Pw.Hs-
2/Department, dated 27.10.1992 and published in the Tamil Nadu Gazette,
dated 30.10.1992 followed declaration made under Section 6 in
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W.P.No.40298 of 2015
G.O.(M.s).No.1164, P.W.(Highways) (HS2) dated 06.08.1993 as published in
Part-II, Section-2 of Tamil Nadu Government Gazette (Extraordinary) dated
13.08.1993 respectively culminating into issuance of notice under Section
12(2) of the Land Acquisition Act, 1894 issued by the R.D.O. Chengalpet/third
respondent herein, signed by him on 21.08.2015, in respect of the petitioner's
land comprised in S.No.338/5B2, measuring to an extent of 34 cents, situated
in Thiruvidanthai group, Vada Nemmeli village then Chengalpet taluk and
district and now in Thiruporur Taluk, Kancheepuram District as having
statutorily lapsed in terms of Section 24(2) of the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 and non-est in law.
2. The petitioner owned the land comprised in Survey No.338/5, to
an extent of 62 cents, situated in Thiruvidanthi Group, Vada Nemmili Village,
Chengalpet. It was purchased by him by a registered Sale Deed dated
11.10.1989, vide Document No. 2720 of 1989. He has put up a compound
wall around his property and subsequently sub divided as Survey Nos.338/5A
and 338/5B2. While being so, the petitioner received a notice in the month of
August 2015 under Section 12(2) of the Land Acquisition Act, 1894 (herein
after called as “Act”), dated 26.08.1995, signed by the third respondent on
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W.P.No.40298 of 2015
21.08.2015. It reveals that an extent of 34 cents comprised in Survey
No.338/5B2 was sought to be acquired under the Act and passed an award in
Award No. 13 of 1995, dated 26.08.1995, thereby the petitioner was called
upon to receive the compensation at Rs.1,07,769/- (Rupees one lakh seven
thousand seven hundred and sixty nine only), on production of title documents.
The petitioner was not served with any notice whatsoever and as such, he
issued notice to the third respondent for details with regard to acquisition.
3. Later, the petitioner came to know about the 4(1) notification
issued on 27.10.1992 in G.O.Ms.No.1491/Pw/Hs-2/Department and published
in the local dailies on 02.11.1992. On 11.11.1992, the substance of the 4(1)
notification was published in the locality. Subsequently, on 13.08.1993, the
declaration under Section 6 of the Act was Gazetted and published in the local
dailies on 14.08.1993 and 15.08.1993. The substance of the declaration under
Section 6 was published in the locality on 26.08.1993. On 01.06.1994, the
notification under Section 7 was Gazetted. The notices under Section 9(3) and
10 were sent as per the order of the Sub-Collector on 07.07.1995. Therefore,
the petitioner challenged the acquisition proceedings on the ground that he was
not paid any compensation till today and the possession of the property has not
been taken by the respondents and he is in possession and enjoyment of the
subject property.
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W.P.No.40298 of 2015
4. Mr.Ayyadurai, the learned Senior Counsel for the petitioner raised
grounds that the acquisition proceedings were initiated in the year 1992 and it
has not been completed even till the year 2015. The petitioner was never
served with any notification under Section 4(1) of the Act. In fact, the Tamil
dailies i.e., Athristam, Vetrimaalai, Dhina Thoothu and Makkal Kural, in
which, the substance of notification under Section 4(1) of the Act, said to have
been published, are not having circulation in the locality. The substance of
declaration under Section 6 of the Act is said to have been published in the
locality on 26.08.1993 and as such, the award should have been passed on or
before 25.08.1995. But the impugned award has been passed only on
26.08.1995 beyond the prescribed period of two years and as such, the
acquisition proceedings have lapsed in terms of proviso to Section 11(A) of the
Act. The respondents failed to deposit the compensation amount as per the
award, immediately after passing the award as mandated under Section 31 of
the Act. The notice under Section 12(2) of the Act have been issued after a
period of twenty years and it would deprive the valuable right of the petitioner
to make reference under Section 18 to claim enhancement of compensation.
5. The petitioner was never paid any compensation and it is also
evident from the notice issued under Section 12(2) of the Act only in the
month of August 2015, signed by the third respondent on 21.08.2015. The
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W.P.No.40298 of 2015
petitioner has been in effective possession and enjoyment of the subject land
till today and not even have taken symbolic possession of the subject property
and as such, the entire land acquisition proceedings have lapsed in terms under
Section 24(2) of The Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013. In support of his
contentions, he relied upon the following judgments reported in :-
1. 2020 (3) MLJ 769 LNIND 2020 MAD 242 in the case of
Executive Engineer, Tamil Nadu Housing Board, Coimbatore vs.
R.Parthasarathi and Others,
2. 2017 (1) SCC 411 in the case of Delhi Development
Authority vs. Radha Nagpal and Others,
3. 2016 (15) SCC 710 in the case of State of West Bengal
and others vs. Aziman Bibi and others,
4. 2020 (4) SCC 572 in the case of D.B. Basnett (Dead),
through legal representatives vs. Collector, East District, Gangtok,
Sikkim and Another,
5. 2021 (2) CTC 300 in the case of K.Saraswathi. 2. K.Balan
@ Vijayakumar vs. State of Tamildu, represented by its Secretary
to Government Housing and Urban Development Department,
Secretariat, Fort St. George, Chennai-600 009.
6. Per contra, Mr.Richardson Wilson, the learned Government
Advocate for the third respondent filed a counter stating that the notice issued
under Section 12(2) of the Act, dated 26.08.1995 wrongly stated the signed
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W.P.No.40298 of 2015
date as 21.08.2015 and it is only a typographical error. Before passing an
award, a notice in Form No.7 as required under Sections 9(3) and 10 of the Act
had been duly served on the petitioner, thereby called upon him to attend the
Award enquiry to be held on 09.08.1995.
7. After filing the writ petition, the Tahsildar, Thiruporur, inspected
the subject property and it would revealed that the petitioner has possession of
the remaining portion of the Survey No.338/5B1 and the acquired portion
comprised in Survey No. 338/5B2, is lying vacant on the western side of the
East Coast Road. The compound wall has been fallen down on one side, while
erecting underground water line by the Metro Water Scheme. He also
submitted a sketch with photographs to show that the subject land is lying
vacant. He further submitted that to substantiate the contentions to lapse the
acquisition proceedings under Section 24(2) of The Right to Fair
Compensation and Transparency in Land Acquisition Act, 1894, the petitioner
has to prove the non depositing of the compensation amount and non taking
the possession of the subject property. The portion of the subject property
acquired from the petitioner and sub divided as Survey No.338/5B2 and all the
revenue records mutated in the name of East Coast Road. Therefore, the
acquired land is vested with the Government. The petitioner was duly served
with notice under Sections 9(3) and 10 of the Act. However, the petitioner
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W.P.No.40298 of 2015
failed to appear for enquiry and passed the award. As far as the compensation
is concerned, it was ordered to be kept under the revenue deposit. Accordingly,
the award amount has been deposited in the revenue deposit and as such, the
acquisition proceedings have not lapsed and prayed for dismissal of the writ
petition.
8. Heard Mr.V.Ayyadurai, the learned Senior Counsel appearing for
the petitioner and Mr. Richardson Wilson, the learned Government Advocate
appearing for the respondents.
9. The respondents acquired the land ad-measuring 25.39 acres
situated in No.45, Thiruvidanthai Village, Chengalpet, for widening and
strengthening of existing East Coast Road from Thiruvanmiyur to Cuddalore.
Admittedly, the notification under Section 4(1) of The Right to Fair
Compensation and Transparency in Land Acquisition Act, 1894, dated
27.10.1992, published in the Tamil dailies Athristam and Vetrimaalai. These
newspapers are not having circulation in the locality. Before passing an award,
a notice in Form No.7 as required under Sections 9(3) and 10 of the Act issued
to the petitioner.
10. On perusal of records produced by the respondents, there is
absolutely no proof to show that it was sent to the petitioner and received by
the petitioner. That apart, the said Form No.7 was signed by the Sub Collector.
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W.P.No.40298 of 2015
Therefore, the Form No.7 was not served to the petitioner at any point of time.
The petitioner came to know about the acquisition proceedings only on the
notice issued under Section 12(2) of the Act, dated 26.08.1995. It was signed
by the third respondent herein only on 21.08.2015 and received by the
petitioner in the month of August 2015. Therefore, admittedly the said notice
was not served to the petitioner immediately after passing the award.
11. Insofar as the award is concerned, even according to the
respondents, the substance of the declaration under Section 6 was published in
the locality on 26.08.1993. As per the proviso to Section 11(A) of the Act, the
respondents should have passed the award within a period of two years i.e., on
or before 25.08.1995. Whereas, the impugned award was passed on
26.08.1995, i.e., after a period of two years. Even after the award, no notice
was served on the petitioner as contemplated under Section 12(2) of the Act
immediately. As stated supra, it was served only in the month of August 2015,
thereby called upon the petitioner to receive the compensation of Rs.1,07,769/.
12. Insofar as the deposit of the award amount is concerned, a perusal of
records reveals that the award was passed on 26.08.1995 and the Form No.7
was served on the petitioner only in the month of August 2015. The
respondents produced records of deposit of payment voucher and revealed that
the said deposit of payment voucher pertaining to the Award No. 12 of 1995 to
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W.P.No.40298 of 2015
the tune of Rs.10,00,00,000/- (Rupees Ten Crores only). Whereas, the award in
respect of the petitioner land is concerned, it was passed in Award No.13 of
1995. Even assuming that the said deposit of payment voucher is pertaining to
the Award No.13 of 1995, it was made only on 31.03.2011, after a period of
sixteen years from the date of the award.
13. A perusal of the extract of the “A” Register reveals that after
acquisition proceedings, the subject land has been mutated in the name of East
Coast Road and the remaining land stood in the name of the vendor of the
petitioner. Whereas, immediately after purchase, the petitioner was issued patta
in Patta No. 1150, dated 04.05.1990, i.e., before issuance of notification under
Section 4(1) of the Act. Thereafter, the petitioner also paid all the revenue dues
in his name and accordingly, the revenue records were mutated in the name of
the petitioner.
14. The learned Government Advocate for the respondents submitted
that the possession of the land was taken and sub divided as Survey
No.338/5B2 and produced the FMB and the photographs along with
demarcated plan. It shows that the subject land has been sub divided and it is
situated adjacent to the service road of the East Coast Road. The subject
property has been surrounded with compound wall. In fact, by the letter dated
18.09.2021, addressed to The Managing Director, Jindal Water Infrastructure
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W.P.No.40298 of 2015
Limited, it was informed that the subject land are abutting East Coast Road on
the western side of the road. The petitioner has put up a compound wall with
granite blocks to protect the property and also engaged a watchman to take
care of the land. During the month of July 2021, a poclain machine was
working outside the property. When it was being so, it got damage to the
compound wall and also started to dump the soil dug up from the road side into
his land. Whereas, the respondents states in the counter that the compound wall
has been fallen down on one side while erecting underground water line by the
Metro Water Scheme. Thus, it is clear that the petitioner is in possession and
enjoyment of the subject property even till today. There is absolutely no
evidence to show even for symbolic possession of the subject property after
passing an award, dated 26.08.1995.
15. The mutation of the revenue records are nothing but the desk work
and neither symbolic possession nor physical possession have taken in respect
of the subject land from the petitioner. Insofar as the compensation amount
also is concerned, as per the award amount, no amount has been deposited by
the respondents and there is no evidence to show about the compensation
amount made deposited in the revenue deposit or the Court deposit.
16. The learned Senior Counsel for the petitioner relied upon the
judgment, in which the Hon'ble Division Bench of this Court relied upon the
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W.P.No.40298 of 2015
judgment reported in 2006 (1) CTC 51 in the case of N.D.Ramanujam and
Others Vs. The State of Tamil Nadu rep. by its Secretary to Government and
others. After extracting the provisions under Section 11 of the Act, held that
there is no proof for prior approval. In the case on hand, the Collector without
any prior approval of the appropriate Government or of such Officer as the
appropriate Government may authorize in this behalf passed an award.
Therefore, held that as far as prior approval under Section 11(1) of the Act is
concerned, this Court doubts obtaining of prior approval under Section 11(1)
of the Act and it has been shown in a suspicious manner. In the case on hand,
the respondents failed to produce any document to show that the prior approval
was obtained before passing an award.
17. In 2016 (15) SCC 710 in the case of State of West Bengal and
others vs. Aziman Bibi and others, the Hon'ble Supreme Court of India held
that the proceedings initiated under Section 4 and 6 of the Act had lapsed by
the reason of failure of the competent authority to make proper award within
the time stipulated for the purpose for once it was held that the proceedings
had indeed lapsed, legal consequence would follow that would not allow even
a writ Court to nullify such consequences. The Section 11(A) of the Land
Acquisition Act,1894, provides that the award shall be made under Section 11
of the Act within a period of two years from the date of declaration under
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W.P.No.40298 of 2015
Section 6 of the Act and if no award is made within a said period, the entire
process for acquisition shall stand lapsed. In the case on hand, the award has
been passed after a period of two years from the date of declaration under
Section 6 of the Act.
18. As far as non issuance of 4(1) notification, the learned Senior
Counsel relied upon the Judgment reported in 2020 (4) SCC 572 in the case of
D.B. Basnett (Dead), through legal representatives vs. Collector, East
District, Gangtok, Sikkim and Another, the Hon'ble Supreme Court of India
held that the procedure of Section 4(1) of the Act is mandatory and unless that
notice is given in accordance with the provisions contained therein, the entire
acquisition proceedings would be vitiated. An entry into the premises based on
such non-compliance would result in the entry being unlawful. In the case on
hand, there is no proof to show whether the process of acquisition has been
followed in accordance with law. No notification has produced for the
intention to acquire the land under Section 4 or any other declaration
thereafter.
19. In view of the above, the respondents failed to follow any of the
procedure as contemplated under the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013,
while acquiring the subject land. As stated supra, the twin conditions as
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W.P.No.40298 of 2015
contemplated under Section 24(2) of The Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
also proved by the petitioner, since the petitioner has not been paid any
compensation amount and there is no proof to show that the entire
compensation amount was already deposited in the Revenue Deposit or the
Court Deposit. Insofar as the possession is concerned, even till today, the
petitioner is in possession and enjoyment of the subject land and the
respondents failed to produce any record to show even for symbolic possession
in respect of the subject land. Therefore the entire acquisition proceedings
have lapsed.
20. Accordingly, the proceedings initiated by the respondents under
Section 4(1) in G.O.(M.s).No:1491/Pw.Hs-2/Department, dated 27.10.1992
and declaration made under Section 6 in G.O.(M.s).No.1164, P.W.(Highways)
(HS2) dated 06.08.1993 are hereby quashed. However, the fourth respondent is
directed to restore the subject land in the name of the petitioner and issue patta
to the petitioner within a period of six weeks from the date of receipt of a copy
of this order.
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W.P.No.40298 of 2015
21. In the result, the writ petition stands allowed. Consequently,
connected Miscellaneous Petition is closed. There shall be no order as to costs.
08.10.2021
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
Lpp/mn
To
1. The Special Secretary to Government,
The State of Tamil Nadu,
P.W.(High Ways) Department,
St.George Fort,
Chennai – 600 009.
2. Land Acquisition Officer &
Special Tahsildar (Land Acquisition) Unit-I,
East Coast Road, widening scheme,
Big Melamaiyur, Chengalpet.
3. Revenue Divisional Officer/Sub-Collector,
Chengalpet District,
Chengalpet.
4. The District Collector,
Kancheepuram District,
Kancheepuram.
5. The Revenue Divisional Officer,
Thiruporur Division,
Kancheepuram District.
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W.P.No.40298 of 2015
G.K.ILANTHIRAIYAN, J.
mn
W.P.No.40298 of 2015 and
M.P.No.1 of 2015
08.10.2021
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