Madras High Court
P.Balasubramanian vs The State Of Tamilnadu on 28 October, 2021
W.P.Nos.1944 & 9302 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.10.2021
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P. Nos.1944 & 9301 of 2011
and M.P Nos.1 & 1 of 2011
W.P.No.1944 of 2011
1. P.Balasubramanian
2. P.Sivasankaran
3. P.Udhayarani
4. P.Muthammal ... Petitioners
-Vs-
1. The State of Tamilnadu
Rep. by its Secretary,
Housing and Urban Development Department
Fort St. George,
Chennai – 9.
2. The District Collector,
Namakkal District.
3. The Sepcial Tahsildhar (LA)
Neighbourhood Scheme (Namakkal)
Iyanthirumaligai Road,
Salem – 636 008.
4. Chandrasekaran
5. Saravanan
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W.P.Nos.1944 & 9302 of 2011
6. The Tamil Nadu Housing Board,
Rep by its Executive Engineer and
Administrative Officer,
Salem Housing Unit,
Iyyanthirumaligai,
Salem -8.
(R6 impleaded as per Court
Order dated 03.02.2012 in
M.P.No.1 of 2012 in
W.P.No.1944 of 2011) ... Respondents
Prayer :- Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Declaration, declaring the land
acquisition proceeding commencing from 4(1) notification published in the
Tamilnadu Government Gazette relating to the lands in S.No.64/8, No.73,
Kondichettipatti Village, Namakkal Taluk and culminating the award No.1 of
1988-89 dated 05.05.1988 as nonest in the eye of law.
For Petitioners : Mr.A.K.Kumarasamy
Senior Counsel
For Ms.N.Kavitha
For Respondents
For R1 to R3 : Mr.Richardson Wilson
Government Advocate.
For R4 & R5 : Mr.S.Kington Jerold
For R6 : Mr.I.Sathish
Standing Counsel
W.P.No.9302 of 2011
1. K.Periasamy (deceased)
2. Pavayi
3. Manoharan
4. Uthayakumar
5. Maruthai
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W.P.Nos.1944 & 9302 of 2011
(P2 to P5 substituted as LRs
of the deceased sole petitioner
vide Order dt. 22.10.2021
made in W.M.P.No.22610/2021
in W.P.No.9302 of 2011) ... Petitioners
-Vs-
1. The State of Tamilnadu
Rep. by its Secretary,
Fort Saint George,
Chennai – 9.
2. The Sepcial Tahsildhar (LA)
Land Acquisition,
Neighbourhood Scheme,
Namakkal,
Iyanthirumaligai Road,
Salem – 636 008.
3. The Tamil Nadu Housing Board,
Rep by its Chairman,
Anna Salai,
Nanadanam, Chennai-35.
4. The Director of Rehabilitation,
Commissionerate of Rehabilitation and
Welfare of Non-Resident Tamil,
Ezhilagam Annexe, Fourth Floor,
Chepauk, Chennai – 600 005. ... Respondents
Prayer :- Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Mandamus, restraining the respondents 1
to 3 their men, agents and servants or any other persons claiming under them
from in any manner interfering with possession and enjoyment of the property
ad measuring to an extent of 4 acres and 17 cents comprised in survey
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W.P.Nos.1944 & 9302 of 2011
Nos.58/1B, 65/3 and 64/6, Kondichettypatty Village, Namakkal Taluk and
District and consequently direct the respondents to reconvey the above said
lands as per the representations dated 28.06.2001, 05.06.2006, 04.12.2006,
17.09.2007, 17.05.2010, 31.01.2011 under Section 48B of the Land
Acquisition (Tamil Nadu Amendment) Act 1996 (Act XVI of 1997).
For Petitioners : Mr.A.K.Kumarasamy
Senior Counsel
For Ms.N.Kavitha
For Respondents
For R1 & R2 : Mr.Richardson Wilson
Government Advocate.
For R3 & R5 : Mr.I.Sathish
Standing Counsel
COMMON ORDER
These Writ Petitions have been filed to declare that the land
acquisition proceeding commencing from 4(1) notification published in the
Tamilnadu Government Gazette relating to the lands in S.No.64/8, No.73,
Kondichettipatti Village, Namakkal Taluk and culminating the award No.1 of
1988-89 dated 05.05.1988 as nonest in the eye of law and to restrain the
respondents 1 to 3 their men, agents and servants or any other persons
claiming under them from in any manner interfering with possession and
enjoyment of the property ad measuring to an extent of 4 acres and 17 cents
comprised in survey Nos.58/1B, 65/3 and 64/6, Kondichettypatty Village,
Namakkal Taluk and District and consequently direct the respondents to
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W.P.Nos.1944 & 9302 of 2011
reconvey the above said lands as per the representations dated 28.06.2001,
05.06.2006, 04.12.2006, 17.09.2007, 17.05.2010, 31.01.2011 under Section
48B of the Land Acquisition (Tamil Nadu Amendment) Act 1996.
2. The petitioners in W.P.No.1944 of 2011, owned land comprised in
survey No.64/8 to an extent of 2.74 acres situated at No.73, Kondichettipatti
Village, Namakkal District. In W.P.No.9302 of 2011, the deceased first
petitioner owned agricultural land comprised in survey Nos.64/6, 65/3, 58/4,
58/1B, 61/6 to an extent of 7 acres 33 cents situated at Kondichettipatti
Village, Namakkal District. While being so, the respondents initiated
acquisition proceedings for the Salem Neighbourhood Scheme on the request
made by the Tamilnadu Housing Board and accordingly proposed to acquire
the land ad measuring 24.36 acres comprised in survey No.58/1, etc including
the petitioners' lands situated at Kondichettipatti Village, Namakkal.
3. Accordingly, the notification under Section 4(1) of the Land
Acquisition Act was approved in GO.Ms.No.352, Housing and Urban
Development Department dated 08.04.1985 and the same was published in
Tamilnadu Government Gazatte on 17.04.1985. The substance of the
notification was published in the locality on 06.05.1985. The draft declaration
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W.P.Nos.1944 & 9302 of 2011
under Section 6 of the Land Acquisition Act, was approved in G.O.Ms.No.638,
Housing and Urban Development Department dated 12.05.1986. The draft
declaration under Section 7 of the Act was approved in Government letter
dated 27.08.1986 and published in Tamilnadu Government Gazatte No.36c.
Supplement notice under Sections 9(1), 10 & 9(3) and 10 of the Land
Acquisition Act were issued on 04.04.1988, fixing the date that the award
enquiry to be held on 28.04.1988. In fact, the petitioners had attended the
award enquiry on 28.04.1988. Since, the ownership was not established by
them, the compensation award amount was deposited in the Sub Court under
Section 31 of the Land Acquisition Act on 12.05.1988.
4. Both the land owners have already challenged the acquisition
proceedings in WP.Nos.6432 of 1988 and 8477 of 1986 respectively. In
WP.No.6432 of 1988 and this Court by an order dated 10.02.1997, directed the
District Collector, Salem to have a personal inspection to find out whether the
construction put up by the petitioners, in any way interferes with the alignment
of the scheme for housing for which the proposed lands are acquired.
Accordingly, the District Collector inspected the land and recommended
exclusion of 2798 sq.ft., out of the lands sought to be acquired from the
petitioners. Insofar as W.P.No.8477 of 1986 is concerned, it was dismissed and
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W.P.Nos.1944 & 9302 of 2011
it went upto Hon'ble Supreme Court of India and remanded back to this Court.
While remanding back, the Hon'ble Supreme Court of India observed that the
case to be heard on the basis that the persons who repatriate, their lands should
not be subject matter of the acquisitions and in several cases pertaining to
neighbouring lands, the land has been released from acquisition and disposed
of the SLP by an order dated 10.08.2000. The said matter was taken up in
W.P.No.4096 of 2008 and while pending adjudication, the survey Nos.65/3,
58/4, 61/6 were alone dealt in and the survey Nos.58/1B, 65/3 & 64/6 were left
out. Therefore, the petitioners filed the present Writ Petition in W.P.No.9302
of 2011, challenging the acquisition proceedings with regards to the survey
Nos.58/1B, 65/3 and 64/6 alone.
5. The learned Senior Counsel appearing for the petitioners in both
Writ Petition submitted that the respondents did not deposit any compensation
amount for the past several years and as such the entire acquisition
proceedings are lapsed. While the father of the petitioners in W.P.No1944 of
2011 was alone challenged the acquisition proceedings in W.P.No.6432 of
1998, this Court by an order dated 10.02.1997, directed the second respondent
to inspect the property and to find out whether any construction put up by the
petitioners, in any way interferes with the alignment of the housing scheme.
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W.P.Nos.1944 & 9302 of 2011
Accordingly, the second respondent inspected the property and recommended
the retention of an extent of 2798 sq.ft., out of the total extent of the property.
However, after demise of the petitioners' father, they came to understand that
the entire land was subjected to the award dated 05.05.1998, and no notice was
served thereafter as contemplated under Section 12(2) of the Act. More over,
the possession of the subject property is still with the petitioners and the entire
scheme has been completed and the subject land is not at all required for the
neighbourhood scheme.
5.1. He further submitted that the subject land in W.P.No.9302 of 2011
is also not utilized for the neighbourhood scheme and it is in possession and
enjoyment of the petitioners. The neighbours land, which is lying in the south
to the subject land, has been given back to the land owners vide government
letter dated 17.07.1987 itself. Likewise the land on the north side of the subject
land, ad measuring 6 acres 81 cents was also given back to its owner by the
government letter dated 20.04.1988. That apart, the land in survey No.38/2 ad
measuring 1 acre 32 cents was also given back to its owner viz., Chellammal
W/o.Karappa Gounder, by the government letter dated 14.06.1988. Further, the
petitioners have also repeatedly made representation to reconvey the subject
land, since the subject land has not been utilized for the purpose for which, it
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W.P.Nos.1944 & 9302 of 2011
was acquired under the neighbourhood scheme. They also challenged the sale
notice dated 19.12.2010 in W.P.No.1955 of 2011 and granted interim
injunction restraining the respondents from interfering with the possession and
enjoyment of the subject property.
5.2. The learned Senior Counsel appearing for the petitioners in both
Writ Petitions also submitted the photographs showing that the subject land in
both the Writ Petitions are lying vacant and adjacent to the land the Tamil
Nadu Housing Board has developed the property and constructed houses. He
also submitted that even the constructed possession are not yet sold out and no
one is there to purchase the same. Therefore, the entire scheme has been
completed and the subject land are not at all required for any development.
Though, the petitioners submitted repeated representation to reconvey the
subject land, even till today, their application has not been considered by the
respondents. Therefore, he prayed to allow both the Writ Petitions.
6. Per contra, the sixth respondent in W.P.N.1944 of 2011 filed
counter and stated that the Salem Housing Board has applied for acquisition of
24.36 acres of land in survey No.58/1 etc., in Kondichettipatty Village,
Namakkal District, for construction of houses under neighbourhood scheme
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W.P.Nos.1944 & 9302 of 2011
including the petitioners' land. The notification under Section 4(1) of the Act
was approved in G.O.Ms.No.352 and published in the government gazette on
17.04.1985. The draft declaration under Section 6 of the Act was approved by
G.O.Ms.No.638 dated 12.05.1986. The notification under Section 7 of the Act
was approved by the government letter dated 27.08.1986 and published in
Tamil Nadu government gazette No.36c. Supplement notice under Sections
9(1), 10, 9(3) & 10 of the Land Acquisition Act was issued on 04.04.1988,
thereby fixing award enquiry was conducted on 28.04.1988. Originally, the
land owners including the petitioners of the subject property in the both Writ
Petitions had attended the enquiry on 28.04.1988. Since they have not
established their ownership, the compensation was deposited under the civil
deposit in Sub Court, Namakkal on 12.05.1988, immediately after passing the
award in Award No.1/88-89. The scheme was implemented and the entire
project was completed and the scheme was developed even before 22 years.
Therefore, after the period of 22 years from the date of award, the Writ Petition
cannot be entertained.
6.1. The learned Government Advocate appearing for the respondents
submitted that in the earlier Writ Petition in W.P.No.6432 of 1988, there was
an interim order, as such they could not be able to take physical possession of
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W.P.Nos.1944 & 9302 of 2011
the property. However already symbolic possession was handed over to the
Tamil Nadu Housing Board. Therefore, the entire revenue records were
mutated in the name of the Tamil Nadu Housing Board. Thereafter, as directed
by this Court, the Collector recommended for exclusion of land ad measuring
0.06 cents, which was a built up portion and hence possession of remaining
land to an extent of 2.74 acres comprised in survey No.64/8 was taken over on
09.06.1999 itself. Therefore, he prayed for dismissal of both the Writ Petitions.
7. Heard Mr.A.K.Kumarasamy, learned Senior Counsel appearing
for the petitioners in both WPs., Mr.Richardson Wilson, learned Government
Advocate appearing for the respondents 1 to 3 in W.P.No.1944 of 2011 &
respondents 1 & 2 in W.P.No.9302 of 2011, Mr.S.Kingston Jerold, learned
counsel appearing for the respondents 4 & 5 in W.P.No.1944 of 2011 and
Mr.I.Sathish, learned Standing Counsel appearing for the sixth respondent in
W.P.No.1944 of 2011 and respondents 3 & 4 in W.P.No.9302 of 2011.
8. The learned Standing Counsel appearing for the Tamil Nadu
Housing Board produced documents to show that the possession of the subject
lands have already been taken over and the compensation award amount has
also been deposited before the Sub Court, Namakkal. It revealed that insofar as
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W.P.Nos.1944 & 9302 of 2011
the subject land in W.P.No.9302 of 2011 comprised in S.F.No.58/1B, 65/3 &
64/6 situated at Kodichettipatti Village, Namakkal District, was taken over as
early as on 03.03.1999 & 18.08.1999, after passing the award dated 28.02.1989
in Award No.7/1988-89. Insofar as the subject land in W.P.No.1944/2011 is
concerned, the respondents passed award in Award No.1 of 1988-89 dated
05.05.1988 and the award amount has been deposited under Section 13(1) of
the Act before the Sub Court, Namakkal on 16.11.1988. Insofar as the
possession is concerned, it was taken over on 09.06.1999.
9. Further both the petitioners have already challenged the
acquisition proceedings and failed. Insofar as the possession of the subject
property is concerned already they have taken possession and the
compensation award amount also deposited before the Court viz., Sub Court,
Namakkal. Therefore, the petitioners failed to satisfy the twin condition as
contemplated under Section 24(2) of the New Act. That apart, the grounds
raised by the petitioners in these Writ Petitions have already been settled by the
Hon'ble Supreme Court of India in the judgment reported in (2020) 8 SCC 129
in the case of Indore Development Authority Vs. Manoharlal and ors etc.,
which held as follows :-
“366. In view of the aforesaid discussion, we
answer the questions as under:
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W.P.Nos.1944 & 9302 of 2011
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
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
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W.P.Nos.1944 & 9302 of 2011
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
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.
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W.P.Nos.1944 & 9302 of 2011
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 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
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W.P.Nos.1944 & 9302 of 2011
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.”
10. The Hon'ble Supreme Court of India settled all proposition of law
in the above judgment including the grounds raised by the petitioners. That
apart, the subject land was acquired for the purpose of Tamil Nadu Housing
Board neighbourhood scheme. The acquisition proceedings have been
completed and the subject land was taken over by the government and the
possession was handed over to the Tamil Nadu Housing Board. Further the
requisition body also deposited the compensation as awarded by the Land
Acquisition Officer before the Sub Court, Namakkal.
11. Therefore, the petitioners in W.P.No.1944 of 2011 failed to satisfy
the twin requirements under Section 24 (2) of the New Act i.e., the physical
possession of the land was not taken and the compensation has not been
paid/tendered/deposited in accordance with law. In view of the dictum laid
down by the Hon'ble Supreme Court of India, the issues raised by the
petitioners were settled and therefore, the acquisition proceedings have not
been lapsed by operation of law under Section 24 (2) of the New Act i.e., Right
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W.P.Nos.1944 & 9302 of 2011
to Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013. In view of the settled position of law, the writ
petition in W.P.No.1944 of 2011 is devoid of merits and liable to be dismissed.
12. The Writ Petition in W.P.No.9302 of 2011 is filed for Mandamus,
to direct the respondents 1 to 3 to consider their request for reconveyance of
the subject property. As stated supra already the deceased first petitioner filed
Writ Petition challenging the acquisition proceedings in W.P.No.8477 of 1986
and the same was allowed and quashed the acquisition proceedings. Aggrieved
by the same the Government filed a Writ Appeal in W.A.No.688/1999 and the
same was allowed by an order dated 10.08.2000. Against which, the
petitioners filed S.L.P.No.2246 of 2002 and the Hon'ble Supreme Court of
India by an order dated 01.04.2005, remanded the matter to this Court in
W.P.No.4096 of 2008 and the same was also dismissed on 09.06.2009.
Therefore, they have failed in challenging the acquisition proceedings. Now
the petitioners came forward with the present Writ Petition with the request to
reconvey the subject property.
13. As stated supra, the entire land had been taken possession by the
Tamil Nadu Housing Board and the revenue records mutated in their names.
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W.P.Nos.1944 & 9302 of 2011
Subsequently, patta also issued in their name in Patta No.241 and subjected to
all the revenue duty. Insofar as the subject land is concerned already layout has
been approved by the Director of Town and Country Plan and the scheme is
under progress. Therefore, the request of the petitioners cannot be considered
to reconvey the subject land and the Writ Petition in W.P.No.9302 of 2011 is
devoid of merits and is liable to be dismissed.
14. In view of the above discussion, both the Writ Petitions are
dismissed. Consequently, connected miscellaneous petitions are closed. There
shall be no order as to costs.
28.10.2021
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
rts
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W.P.Nos.1944 & 9302 of 2011
To
1. The Secretary,
State of Tamilnadu
Housing and Urban Development Department
Fort St. George,
Chennai – 9.
2. The District Collector,
Namakkal District.
3. The Sepcial Tahsildhar (LA)
Neighbourhood Scheme (Namakkal)
Iyanthirumaligai Road,
Salem – 636 008.
4. The Tamil Nadu Housing Board,
Rep by its Executive Engineer and
Administrative Officer,
Salem Housing Unit,
Iyyanthirumaligai,
Salem -8.
5. The Tamil Nadu Housing Board,
Rep by its Chairman,
Anna Salai,
Nanadanam, Chennai-35.
6. The Director of Rehabilitation,
Commissionerate of Rehabilitation and
Welfare of Non-Resident Tamil,
Ezhilagam Annexe, Fourth Floor,
Chepauk, Chennai – 600 005.
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W.P.Nos.1944 & 9302 of 2011
G.K.ILANTHIRAIYAN, J.
rts
W.P. Nos.1944 & 9301 of 2011
and M.P Nos.1 & 1 of 2011
28.10.2021
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