Madras High Court
D.Balaraman vs The Government Of Tamil Nadu on 26 October, 2021
W.A.No.90 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.10.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.A.No.90 of 2017
D.Balaraman ... Appellant
-vs-
1. The Government of Tamil Nadu
rep. by its Secretary to Government,
Housing and Urban Development Department,
Fort St. George, Chennai-600 009.
2. The Special Tahsildar (Land Acquisition),
Tamil Nadu Housing Board Schemes,
Nandanam, Chennai-600 035.
3. The Managing Director,
Tamil Nadu Housing Board Schemes,
Nandanam, Chennai-600 035.
4. The Executive Engineer,
TNHB, Besant Nagar,
Chennai-600 041. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent
against the Order of the learned Single Judge made in W.P.No.900 of
2015 dated 11.12.2015.
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1/17
W.A.No.90 of 2017
For Appellant : Mr.AR.L.Sundaresan,
Senior Counsel
For Respondents : Mr.T.Arunkumar,
1 and 2 Government Advocate
For Respondents : Mrs.Dr.R.Gowri
3 and 4
JUDGMENT
(Judgment of the Court was pronounced by T.RAJA.J)
The appellant herein has brought this Writ Appeal against the
impugned order dated 11.12.2015 passed in W.P.No.900 of 2015 in
and by which the learned Single Judge while refusing the prayer for
issuance of a Writ of Declaration to declare that the entire land
acquisition proceedings initiated under the Land Acquisition Act, 1894
in respect of the lands to an extent of 18 cents in Survey No.98/5 of
Thiruvanmiyur Village duly notified by the 2nd respondent in the
Award under Reference No.7/86 (RC.No.414/79) dated 23.09.1986 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 of 2013), dismissed the Writ Petition.
2. The brief facts of the case are as follows:
The land-in-question was originally acquired by issuing a
Notification under Section 4(1) of the Land Acquisition Act, 1894
(hereinafter referred to as, 'the Act'), on 17.07.1978. Subsequently,
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a Declaration under Section 6 of the Act was also issued on
06.08.1991. Thereafter, an award was also passed on 23.09.1986 in
Award No.7/1986 and a compensation of Rs.40.95 p. had been
deposited in a Civil Court under Sections 30 and 31 of the Act on
16.02.1987. While so, the grievance of the writ petitioner/appellant
herein is that firstly, although the Land Acquisition Proceedings were
initiated as early as on 17.07.1978 by issuing a Notification under
Section 4(1) of the Act, the physical possession of the land has not
been taken and the appellant has been in physical possession and
enjoyment of the same till date. Secondly, as per Section 16 of the
Act, the mode of taking physical possession of the acquired land
following the Panchanama in the presence of witnesses signed by
them has not been fulfilled. Thirdly, the compensation payable to the
land acquired also has not been paid to him. Therefore, the
acquisition proceedings initiated by the respondents stood lapsed.
3. Learned Senior Counsel appearing for the appellant would
submit that as per Section 24(2) of the Act 30 of 2013, any
acquisition proceedings initiated under the Land Acquisition Act,
1894, where an award under the said section 11 has been made five
years or more and where physical possession of the land has not
been taken or where no compensation has been paid, the said
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W.A.No.90 of 2017
proceedings shall be deemed to have lapsed and fresh proceedings
have to be initiated in accordance with the provisions of the Act
30/2013. This aspect has been totally overlooked by the learned
Single Judge.
4. Continuing his arguments, learned Senior Counsel for the
appellant would further submit that when the writ
petitioner/appellant and his family members, who all belong to
Scheduled Caste Community, also do not have any other property to
bank upon their survival, their meagre land cannot be acquired. In
this regard, the Government of Tamil Nadu had also issued a Circular
in the year 1977, giving a clear guideline that the lands belonging to
Scheduled Caste/Scheduled Tribes shall not be acquired except where
it becomes absolutely necessary and in such cases, the District
Collector should obtain the prior permission of the Government for
including such lands in the Land Acquisition Proceedings. Therefore,
when the Government Circular issued in the year 1977 speaks clearly
that the land belonging to the weaker sections, namely, Scheduled
Caste/Scheduled Tribes should not be acquired, in the present case,
when the appellant owns only a small extent of land, namely, 18
cents covered in Survey No.98/5 of Thiruvanmiyur Village, it has
been acquired. But, ionically, the respondents have come forward to
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W.A.No.90 of 2017
re-convey the land covered in Survey No.95/8 Part in favour of one
Mr.Kannappan, S/o.Babu Gurukkal, who filed an Appeal Petition to
the Government of Tamil Nadu because the Government of Tamil
Nadu in Letter No.44161/LA2(1)/04-3, HUDD, dated 20.09.2005 and
Letter No.36644/LA2(1)/05-3, dated 16.03.2006 had directed the
Tamil Nadu Housing Board to re-convey the land in S.Nos.95/8 part
to an extent of 0.09 acres to one T.Kannappan, on consideration of
the return of the award amount by him with interest. Finally, the
land belonging to the said Mr.Kannappan covered in S.No.95/8 part
having a small extent of land 0.09 acres was re-conveyed on
payment of development charges of Rs.8,00,000/- along with further
interest. But in the present case, when the land covered in Survey
No.98/5 having an extent of 18 cents belonging to the writ
petitioner/appellant was acquired overlooking the circular issued by
the Government of Tamil Nadu in the year 1977, regrettably, only a
sum of Rs.40.95p was deposited. Therefore, when the adjacent land
covered in Survey No.95/8 belonging to Mr.Kannappan S/o.Babu
Gurukkal was ordered to be re-conveyed on payment of
Rs.8,00,000/-, the respondents by passing an award No.7/1986 dated
23.09.1986 had not paid the reasonable compensation to the
appellant that goes to show that they were interested in taking over
the lands belonging to the weaker sections of the society and the
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W.A.No.90 of 2017
payment of Rs.40.95 p. cannot be construed as a compensation at all.
5. Arguing further, learned Senior Counsel for the appellant
would submit that when the land covered in Survey No.98/5 is closely
situated nearer to the land covered in Survey No.95/8 part, re-
conveying the land covered in Survey No.95/8 in favour of Kannappan
and not showing the similar treatment to the appellant herein when
the acquisition of his land is completely banned and prohibited by the
Government Circular issued in the year 1977, it clearly shows that
the respondents have applied the pick and choose method and not
conducted the land acquisition proceedings fairly. Therefore, the
approach adopted by the respondents cannot pass the test of
reasonableness as contemplated under Article 14 of the Constitution
of India.
6. Concluding his arguments, learned Senior Counsel would
further submit that though the entire project itself has been
concluded, the physical possession of the land-in-question even now
continues with the appellant herein for the simple reason that the
mandatory conditions contemplated under Sections 16 and 47 of the
Land Acquisition Act have not been complied with. Even the law laid
down by the Apex Court in a case in Indore Development
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W.A.No.90 of 2017
Authority vs. Manoharlal and others reported in (2020) 8
Supreme Court Cases 129 in para 366.7 ought to have been
followed and since the same has not been followed, the impugned
order is liable to be set aside, he pleaded.
7. Learned Counsel appearing for the respondents 3 and 4/
Tamil Nadu Housing Board argued that the contentions made by the
appellant that neither the physical possession of the land-in-question
was taken by the respondents nor the payment of compensation was
made, cannot be accepted. In support of her contention, drawing our
notice to the typed set of papers filed by the Housing Board showing
the Transfer of Charge Certificate dated 23.09.1986 indicating the
taking possession of the lands belonging to the various survey
numbers replied that the physical possession of the lands had already
been taken not only from the appellant, but also from other persons.
8. We are unable to find any justification in the said
submission of the learned Counsel for the Tamil Nadu Housing Board.
It is seen from the Transfer of Charge Certificate dated 23.09.1986
issued by the Housing Board that several lands acquired by the State
Government have been physically taken over, but, as per Section 16
of the Land Acquisition Act, which is extracted hereunder, one of the
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accepted modes of taking physical possession of the acquired land is
to be reported by a Memorandum or Panchanama by the Land
Acquisition Officer in the presence of the witnesses signed by them
and that alone would constitute the physical possession of the land.
16.Power to take possession. ------ When the Collector has
made an award under section 11, he may take possession of
the land, which shall thereupon [vest absolutely in the
[Government], free from all encumbrances].
9. While considering an identical issue, the Apex Court also in
the case of Tamil Nadu Housing Board vs. A.Viswam reported in
1996 (8) SCC 259 has clearly and categorically laid down the law as
to how the physical possession of the land acquired should be taken
over by the Land Acquisition Officer, holding that one of the accepted
modes of taking possession of the acquired land is by way of
recording a Panchanama by the Land Acquisition Officer in the
presence of the witnesses signed by them. But, in this case, the
mandatory directions contained in Section 16 of the Act providing the
evidence of taking physical possession by recording a Panchanama
has not been found in the Transfer of Charge Certificate filed by the
Housing Board.
10. Secondly, coming to Section 47 of the Act which is also
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reproduced hereunder for the sake of ready reference, shows that if
the Collector is prevented from taking physical possession of the
land, he can enforce the surrender of the land to himself by applying
to a Magistrate or to the Commissioner of Police. But in the present
case, it appears that no such measures have been resorted to as per
Section 47 of the Act.
''47. Magistrate to enforce surrender.----- If the Collector is
opposed or impeded in taking possession under this Act of any
land, he shall, if a Magistrate, enforce the surrender of the
land to himself, and, if not a Magistrate, he shall apply to a
Magistrate or (within the towns of Calcutta*, Madras* and
Bombay*) to the Commissioner of Police and such Magistrate
or Commissioner (as the case may be shall enforce the
surrender of the land to the Collector.''
11. In this regard, it is apposite to refer to the latest decision
of the Hon'ble Apex Court in the case of Indore Development
Authority vs. Manoharlal and others reported in (2020) 8
Supreme Court Cases 129, wherein it is held in para 366.7 that the
mode of taking physical possession under the 1894 Act and as
contemplated under Section 24(2) is by drawing of Inquest
Report/Memorandum. As we have highlighted above, when there
was no such inquest report or memorandum or panchanama
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W.A.No.90 of 2017
prepared, we are unable to agree with the approach adopted by the
respondents in taking physical possession of the land-in-question.
12. Thirdly, the Forty Fourth Constitutional Amendment, 1978,
deleted Articles 19(1)(f) and 31 from Part III, the Chapter on
Fundamental Rights in the Constitution, guaranteeing to acquire, hold
and dispose of the property. Instead, it inserted Article 300A in a
new Chapter IV of Part XII of the Constitution, which states that no
person shall be deprived of his property save by the authority of law.
Although the right to one's property is no longer a fundamental right,
44th Amendment ensured a constitutional right/legal right/statutory
right, therefore, in the event of breach, a remedy to an aggrieved
person is available under Article 226 of the Constitution of India.
Hence, protection under Article 300A is still available to any person in
the event of depriving his right to property.
13. This apart, in the case on hand, although 4(1) notification
was issued on 17.07.1978, the respondent has passed the award only
on 23.09.1986, which is 8 years after the 4(1) notification. Section
24(2) of the Act 30 of 2013 says that where an award under Section
11 of the Act has been made five years or more and where physical
possession of the land has not been taken or where no compensation
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W.A.No.90 of 2017
has been paid, then such land acquisition proceedings shall be
deemed to have been lapsed. Therefore, as stated above, since the
award was passed after 8 years from the date of 4(1) notification, the
land acquisition proceedings shall lapse.
14. Lastly, coming to the payment of compensation, it is to be
noted that the appellant, admittedly, a member of the Scheduled
Caste Community and he has pleaded that he is not having any other
land except the land-in-question. When the acquisition took place in
the year 1986, the respondents after acquiring the land-in-question
situate in a prime area had deposited a sum of Rs.40.95p at the rate
of Rs.1% for 18 cents in the civil court under Sections 30 and 31 of
the Act on the premise that there was a dispute with regard to the
title of the land among the land owners. As per Section 11 of the
Land Acquisition Act, 1894, the Collector, while passing the award,
shall proceed to enquire into the true value of the land. But, in the
present case, the Collector, without conducting a proper enquiry,
fixed Rs.40.95p as total compensation for acquisition of 18 cents
covered in S.No.95/8, Thiruvanmiyur, which is a prime locality
surrounded by IT Parks, therefore, such a meagre compensation
awarded by the Land Acquisition Officer shows that that he has not
fixed fair and reasonable compensation on the basis of the market
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value of such land. Therefore, such an compensation arrived at by
the authorities is as good as not paying the compensation at all.
15. Coming to the discriminatory treatment meted out to the
appellant, it may be pointed out that the land belonging to one
Mr.Kannappan S/o.Babu Gurukkal covered in Survey No.95/8-part is
adjacent to the appellant's land. It is also an admitted fact that even
the affidavit filed by the Housing Board/4th respondent on behalf of
the 3rd respondent also shows that the land covered in S.No.95/8-
part having an extent of 0.09 acres was re-conveyed to the land
owner, accepting the appeal filed by Mr.Kannappan, S/o.Babu
Gurukkal. As a matter of fact, when an appeal was filed by the said
Kannappan for reconveyance, the Government of Tamil Nadu in Letter
No. 44161/LA2(1)/04-3, HUDD, dated 20.09.2005 has directed the
Tamil Nadu Housing Board to re-convey the land in Survey No.95/8-
Part to an extent of 0.09 acres of land on condition of returning the
award amount by him. The affidavit further says that the land in
Survey No.95/8 measuring to an extent of 9 cents to be re-conveyed
as per the Government Order after collecting the development
charges of Rs.8,00,000/- along with further interest. Therefore, as
we have indicated above, when a similar extent of land belonging to
one Kannappan was acquired and the same was also handed over to
the Tamil Nadu Housing Board and after taking physical possession of
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the land and transferring the land to the Tamil Nadu Housing Board,
the Tamil Nadu Government, accepting the appeal of the said
Kannappan has directed the Tamil Nadu Housing Board to re-convey
the land on receipt of the development charges of Rs.8,00,000/- with
further interest and more particularly, when 9 cents of land was re-
conveyed back to the land owner Mr.Kannappan on receipt of the
huge amount of Rs.8,00,000/-, it is not known how the respondent
can discriminate the poor appellant alone who belongs to weaker
section. Therefore, such an approach clearly shows that the
respondents have violated the principle of equality laid down in
Articles 14 and 15 of the Constitution of India and thus, in our
considered view, acquisition of his land is bad in law.
16. Moreover, the Government of Tamil Nadu also issued a clear
instruction by way of Memorandum dated 06.05.1977 directing that
the land belonging to Harijans should not be acquired except where it
becomes absolutely inevitable. Relevant portion thereof is extracted
below:-
With a view to speed up the process of
Land Acquisition work for providing house sites
to the Houseless Harijan families, instructions
have been issued in the past requesting the
Collectors to follow them scrupulously at the
time of instituting Land Acquisition
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W.A.No.90 of 2017
Proceedings. The following further instructions
are issued in regard to exercise the power by
the District Collectors.
(i) Land belonging to poor persons
with meager land holding need not
generally be acquired unless otherwise
inevitable for the purpose of maintaining
proximity and vicinity to the main Village.
(ii) Lands belonging to Harijans
should not be acquired except where it
becomes absolutely inevitable. In such
cases the Collectors should obtain prior
permission of the Government for
including such lands in the Land
Acquisition Proposals.
A mere perusal of the above Memorandum would show two aspects;
firstly the land belonging to the poor person with meager land holding
need not be acquired unless otherwise it is inevitable for the purpose
of maintaining proximity and vicinity to the main village; and
secondly, the land belonging to Harijans should not be acquired
except where it is absolutely inevitable, and in such event, the
Collector should obtain prior permission of the Government before
acquisition of the land belonging to Harijans. Therefore, in the
present case, admittedly, the appellant is a member of the Scheduled
Caste/Scheduled Tribes Community and he is having no other land
except the land in question covered in Survey No.98/5 part, hence, in
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our considered view, acquisition of his land is bad in law.
17. In fine, for the reasons stated above, the Writ Appeal is
allowed by setting aside the impugned order passed by the learned
Single Judge in W.P.No.900 of 2015 dated 11.12.2015. No costs.
(T.R.J.,) (D.B.C.J.,)
26.10.2021
Index: yes/no
Speaking/non-speaking
tsi
To
1. The Secretary to Government,
Government of Tamil Nadu,
Housing and Urban Development Department,
Fort St. George, Chennai-600 009.
2. The Special Tahsildar (Land Acquisition),
Tamil Nadu Housing Board Schemes,
Nandanam, Chennai-600 035.
3. The Managing Director,
Tamil Nadu Housing Board Schemes,
Nandanam, Chennai-600 035.
4. The Executive Engineer,
TNHB, Besant Nagar,
Chennai-600 041.
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W.A.No.90 of 2017
T.RAJA, J.
and
D.BHARATHA CHAKRAVARTHY, J.
tsi
W.A.No.90/2017
26.10.2021
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