Madras High Court
G.Punniyavathi vs The State Of Tamil Nadu on 28 October, 2021
W.P.Nos.15711 and 15712 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.10.2021
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.Nos.15711 and 15712 of 2017
and W.M.P.No.16995 of 2017
1. G.Punniyavathi
2. G.Mani
3. C.G.Raghupathy ... Petitioners in both W.P.s
-Vs-
1. The State of Tamil Nadu,
Represented by its Secretary to Government,
Housing and Urban Development Department,
Fort St.George,
Chennai 600 009.
2. The Special Tahsildar,
(Land Acquisition),
Housing Scheme Unit No.II,
Coimbatore - 641 012.
3. Tamil Nadu Housing Board,
493, Anna Salai, Nandanam,
Chennai 600 035.
Represented by its Director.
(R3 impleaded in
W.M.P.Nos.4670 of 2018
and 4671 of 2018
vide Court order dated 28.02.2018) ... Respondents in both W.P.s
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W.P.Nos.15711 and 15712 of 2017
Prayer in W.P.No. 15711 of 2017:- Writ Petition filed under Article 226 of
the Constitution of India praying for the issuance of a Writ of Declaration,
declaring that the acquisition of the petitioner's agricultural land measuring an
extent of 0.09.5 hectares comprising in S.F.No.805/1A situated in Kalapatty
East Village, Coimbatore North Taluk Office, Sub Registrar Office,
Gandhipuram pursuant to the notifications issued under Section 4(1) of the
Land Acquisition Act, in G.O.Ms.No.519, dated 03.04.1991 (Housing and
Urban Development Department) and G.O.Ms.No.246, dated 13.05.1992
(Housing and Urban Development Department) published in Gazette on
15.05.1992 has lapsed in view of Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, (0/2013).
Prayer in W.P.No. 15712 of 2017:- Writ Petition filed under Article 226 of
the Constitution of India praying for the issuance of a Writ of Certiorari, calling
for the records of the second respondent herein culminating with the order in
Letter No.W.P.948 of 2016, dated 13.02.2017 and quash the same.
In Both W.P.s
For Petitioners : Mr.M.Vaidyanathan
For R1 and R2 : Mr.Richardson Wilson
Government Advocate.
For R3 : Dr.R.Gouri, Senior Counsel.
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W.P.Nos.15711 and 15712 of 2017
COMMON ORDER
These Writ Petitions have been filed to declare that the acquisition
of the petitioners' agricultural land measuring an extent of 0.09.5 hectares
comprising in S.F.No.805/1A situated in Kalapatty East Village, Coimbatore
North Taluk Office, Sub Registrar Office, Gandhipuram pursuant to the
notifications issued under Section 4(1) of the Land Acquisition Act, in
G.O.Ms.No.519, dated 03.04.1991 (Housing and Urban Development
Department) and G.O.Ms.No.246, dated 13.05.1992 (Housing and Urban
Development Department) published in Gazette on 15.05.1992 has lapsed in
view of Section 24(2) of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, (0/2013) and to call for
the records of the second respondent herein culminating with the order in Letter
No.W.P.948 of 2016, dated 13.02.2017 and quash the same.
2. The first respondent had initiated the land acquisition proceedings
to acquire the agriculture land comprised in S.F.Nos.803/2, 803/3 and 804/1,
including the land comprised in Survey No.805/1A belonging to the petitioners
by the notification issued under Section 4(1) of the Land Acquisition Act, 1894
(herein after called as "the Act"), vide G.O.Ms.No.519, dated 03.04.1991 for
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W.P.Nos.15711 and 15712 of 2017
the purpose of Neighbourhood scheme of the third respondent and the
declaration under Section 6 of the Act vide G.O.Ms.No.246, dated 13.05.1992.
According to the petitioners, neither them nor their predecessors were aware
about the acquisition proceedings. However, the husband of the first petitioner
and the father of the second and third petitioners herein, came to understand
about the land acquisition from the adjacent owners who had received notices
under the acquisition proceedings. They have also approached this Court by a
writ petition in W.P.No. 5208 of 2008, challenging the acquisition proceedings
initiated by the first respondent, vide notification under Section 4(1) and
Section 6 declaration of the Act. This Court by an order, dated 12.06.2009,
held that neither approval under Section 3 f(vi) of the Act was obtained nor
notice under Section 9(3) of the Act was issued and the award was also not
passed within the period of two years as stipulated under the Act. Therefore,
the entire acquisition proceedings suffers from infirmities and illegalities and
quashed the entire acquisition proceedings.
3. Thereafter, the first respondent dropped the acquisition
proceedings of their neighbours and the revenue records and other land records
were mutated back to their respective owners. They were also issued patta. In
pursuant to the order passed by this Court in W.P.No. 5208 of 2008, dated
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W.P.Nos.15711 and 15712 of 2017
12.06.2009, the husband of the first petitioner submitted a representation to
drop the acquisition proceedings insofar as their subject land. However, it was
not considered and as such they filed a writ petition before this Court in
W.P.No. 948 of 2016 and by an order dated 11.01.2016, this Court directed the
second respondent to consider the same and pass orders. However, the request
made by the petitioner was rejected and it is under challenge in writ petition in
W.P.No.15712 of 2017.
4. The learned counsel for the petitioner would submit that the entire
land acquisition proceedings initiated by the first respondent has become void
ab initio, in view of the order passed by this Court in W.P.No. 5208 of 2008.
Thereafter, the other adjacent land owners also have challenged the acquisition
proceedings of the notification issued under Section 4(1) of the Act, in
G.O.Ms.No.1216, dated 17.09.1991 and the consequential declaration made
under Section 6(1) of the Act issued in G.O.Ms.No.934, dated 31.12.1992 in
W.P.No.11778 of 2013. This Court by an order dated 02.12.2019, quashed the
entire acquisition proceedings. He also relied upon the judgment passed in
W.A.No.252 to 255 of 2011, dated 16.08.2011, wherein the Hon'ble Division
Bench of this Court had dismissed the appeals as against the quashment of the
land acquisition proceedings arising under the same scheme. He further
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W.P.Nos.15711 and 15712 of 2017
submitted that, therefore the respondents are bound to restore the lands
belonged to the petitioners in their names and no purpose would be served to
the respondents by retaining the subject land. Even as per the provisions under
Section 24(2) of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013, the entire proceedings
are liable to be quashed on the ground that no compensation has been paid to
the petitioners till date and no physical possession of the subject land has been
taken over.
5. Dr. S. Gouri, the learned counsel for the third respondent filed a
counter and contented that the subject land relating to S.F.No.805/A to an
extent of 0.09.5 hectares in Kalapatty Village, Coimbatore district was acquired
with other lands to an extent of 6.54.0 hectares by the proceedings of the Land
Acquisition Officer for implementation of housing scheme by the Tamil Nadu
Housing Board vide Award No. 8/94, dated 20.05.1994. The possession of the
above land is handed over to the Tamil Nadu Housing Board as early as on
09.12.1994. The layout was prepared inclusive of the subject land for
implementation of Housing Scheme in Kalapatty Village, Coimbatore District
and got approved vide LP/DTCP No.434/95 and the scheme was implemented
to an extent of 23.35 acres as Kalapatty Neighbourhood Scheme (Phase-I) in
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W.P.Nos.15711 and 15712 of 2017
Kalapatty Village. She also relied upon the judgment reported in 2015 (5)
MLJ 248 (SC) LNIND 2015 SC 324 in the case of "Chairman and Managing
Director, TNHB Vs. S.Sasraswathy and Others" and the Hon'ble Supreme
Court of India held that the High Court annulled the entire acquisition
proceedings. Whether the quashing of the acquisition proceedings in respect of
the other matters would enure the benefit to the other owners. When the
Division Bench expressly limited the controversy to the quashing of
proceedings, it doesn't have the effect of quashing the entire acquisition. She
further stated that, unless the declaration under Section 6 or notification under
Section 4 of the Act is not explicitly quashed in toto or its wholeness also by
the Court, the benefits of relief granted by the Court would be effective only
qua the parties before it.
6. Therefore, though the adjacent owners' writ petitions were allowed
by this Court, the same benefit cannot be extended to the petitioners insofar as
the subject property, since already the scheme was implemented by obtaining
the approval vide LP/DTCP/434/95 for the Kalapatty Neighbourhood Scheme.
She further submitted that this writ petition is filed after 22 years, that too, after
passing an award and after implementation of the scheme.
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W.P.Nos.15711 and 15712 of 2017
7. Insofar as the grounds raised under Section 24(2) of the Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 is concerned, already the Constitutional Bench of the
Hon'ble Supreme Court of India in Indore Development Authority Vs.
Manoharlal and ors etc., reported in (2020) 8 SCC 129, the grounds raised by
the petitioners have already settled. Therefore, it does not envisage or confer
any such right to question the acquisition proceedings which have been
concluded long back, the legality of the proceedings cannot be challenged
belatedly and the right to challenge cannot be revived by virtue of the
provisions under Section 24(2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
8. Heard Mr.M.Vaidyanathan, learned counsel appearing for the
petitioners, Mr.Richardson Wilson, learned Government Advocate appearing
for the respondents 1 and 2 and Dr.R.Gouri, learned Senior Counsel appearing
for the third respondent.
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W.P.Nos.15711 and 15712 of 2017
9. The Tamil Nadu Housing Board, Coimbatore Housing Unit, has
proposed to acquire the land ad-measuring 808.87.5 hectares in No.12,
Kalapatty Village, Coimbatore district for the construction of houses under
Kalapatty Neighbourhood Scheme. The lands to be acquired in Kalapatty
village have been formed into 78 blocks for procedural convenience. The
subject land comprised in S.F.No.805/1A falls in Block No. 60. It covers along
with the other lands to an extent of 6.54.0 hectares in Kalapatty Village,
Coimbatore district. The Draft Notification under Section 4(1) of the Act was
approved in G.O.Ms.No.519, dated 03.04.1991 and it was published in the
daily newspapers on 03.05.1991 and 05.05.1991. The substance of the
notification was published in the locality on 08.05.1991. Therefore, the enquiry
was conducted under Section 5(A) of the Act on 31.03.1992 and the draft
declaration proposals under Section 6 were approved and the notification
published in the Tamil Nadu Government Gazette Part II Section 2 No.287,
dated 15.05.1992.
10. The Draft Notification under Section 7 of the Act was approved
and published in the Tamil Nadu Government Gazette. The enquiry under
Section 11 of the Act was conducted on 04.04.1994, after services of notices
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W.P.Nos.15711 and 15712 of 2017
under Section 9(1) and 10, 9(3) and 10 of the Act. The same notification issued
under Section 4(1) of the Act in G.O.Ms.No.519, dated 03.04.1991 and
G.O.Ms.No.246, dated 13.05.1992 in respect of the land comprised in
S.F.No.804/1 situated at Kalapatty Village, Coimbatore, were challenged before
this Court in W.P.No.5208 of 2008. This Court by an order, dated 12.06.2009,
quashed the proceedings on the ground that the publication of declaration under
Section 6 of the Act was only made on 22.05.1992. It could be seen from the
records, that there was nothing in the records to show that the publication was
effected on 22.05.1992 in the locality except the bald statement by the
Government Advocate. Hence, the submission of the Government Advocate
could not be countenanced. A draft award made by the respondents in Award
No. 8/94, on 20.05.1994, was not passed within the time limit of two years from
the date of declaration and in view of that, the entire proceedings become
lapsed. Further observed that there was no approval under Section 3 f(vi) of the
Act. No notices for enquiry under Section 9(3) of the Act and there was no
legally valid award made by the Land Acquisition Officer after getting prior
approval from the competent authority within the stipulated period of two
years. It became final and no appeal was filed by the respondents. The other
adjacent land owners also challenged the acquisition proceedings in
W.P.No.11778 of 2013 and this Court by an order, dated 02.12.2019 observed
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W.P.Nos.15711 and 15712 of 2017
that already the adjacent owners challenged the same acquisition proceedings in
W.P.No.13616 of 2013 and batch and W.P.No.16417 of 1998 etc and batch,
were allowed by the common order dated 30.08.2010. The said order was
challenged in W.A.No.422 of 2011 etc and batch, were dismissed by the
common Judgment, dated 14.09.2011. In fact, it was also confirmed by the
Hon'ble Supreme Court of India in Special Leave to Appeal (Civil) Nos. 6063
to 6066 of 2012 by an order, dated 13.04.2012. Another batch of Special Leave
to Appeal (Civil) Nos. 14582 to 14634 of 2012 were dismissed by an order,
dated 19.09.2012. Further held that the notification under Section 4(1) and
Section 6(1) enquiry have been quashed and it does not survive, that would
mean that it is quashed for the purpose of housing board cannot take of stand
that it is quashed in respect of those petitioners alone. Further held that the
Hon'ble Division Bench of this Court held more than one decisions and
quashed the acquisition proceedings in respect of the same scheme.
11. Further observed that the entire Kalapatty Neighbourhood Scheme
has not been implemented till date and several orders have been passed by this
Court quashing the acquisition proceedings. Insofar as the latches is
concerned, as it has been filed after several years from the date of the award,
however, the petitioners are still in possession and enjoyment of the subject
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W.P.Nos.15711 and 15712 of 2017
property and they have submitted application for transfer of patta and the same
was rejected. It is also in challenge in the W.P.No.15712 of 2017. Insofar as
the compensation is concerned, it is also not paid and as such they invoked the
provisions under Section 24(2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
and challenged the acquisition proceedings. That apart, already the adjacent
owners filed writ petitions challenging the acquisition proceedings and the
same were allowed.
12. The learned counsel for the third respondent vehemently contented
that the learned Advocate General in the order passed in the writ petition cited
by the petitioner, had produced maps to show that the project is still viable for
consideration. An observation to the said effect has been made by the learned
Single Bench while allowing the writ petitions stating that the lands ever after
being fractured, if the housing board as per revised schemes wants to go ahead
with building houses this execution will no way hamper it. Accordingly,
insofar as the land ad-measuring 23.35 acres for the Kalapatty Neighbourhood
Scheme including the subject land in the present writ petition got approved in
LP/DTCP No. 434/95 and the said scheme was implemented. Whereas the
possession of the subject land has not been taken over and the petitioners are
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W.P.Nos.15711 and 15712 of 2017
still in possession and enjoyment of the subject land. Therefore, mere approval
of the layout cannot be said that the Kalapatty Neighbourhood Scheme was
implemented in Kalapatty Village. Hence, the entire acquisition proceedings in
respect of the subject land cannot be sustained and have lapsed in view of
Section 24(2) of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013, since there is no
records to show that the petitioners were paid compensation for the subject
land, has been deposited and there is no records to show even for symbolic
possession in respect of the subject property.
13. In view of the above, the acquisition of the petitioner's agricultural
land measuring an extent of 0.09.5 hectares comprising in S.F.No.805/1A
situated in Kalapatty East Village, Coimbatore North Taluk Office, Sub
Registrar Office, Gandhipuram pursuant to the notifications issued under
Section 4(1) of the Land Acquisition Act, in G.O.Ms.No.519, dated 03.04.1991
(Housing and Urban Development Department) and G.O.Ms.No.246, dated
13.05.1992 (Housing and Urban Development Department) published in
Gazette on 15.05.1992 in view of Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, (0/2013) is lapsed and the order passed by the second
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W.P.Nos.15711 and 15712 of 2017
respondent in Letter No.W.P.948 of 2016, dated 13.02.2017 is quashed.
14. The second respondent is directed to restore the subject lands in
the name of the petitioners and issue patta in their favour within a period of six
weeks from the date of receipt of a copy of this order.
15. In the result, these writ petitions are allowed. Consequently,
connected Miscellaneous petition is closed. There shall be no order as to costs.
28.10.2021
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
mn
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W.P.Nos.15711 and 15712 of 2017
To
1. The Secretary to Government,
The State of Tamil Nadu,
Housing and Urban Development Department,
Fort St.George,
Chennai 600 009.
2. The Special Tahsildar,
(Land Acquisition),
Housing Scheme Unit No.II,
Coimbatore - 641 012.
3. The Director,
Tamil Nadu Housing Board,
493, Anna Salai, Nandanam,
Chennai 600 035.
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W.P.Nos.15711 and 15712 of 2017
G.K.ILANTHIRAIYAN, J.
mn
W.P.Nos.15711 and 15712 of 2017
and W.M.P.No.16995 of 2017
28.10.2021
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