Madras High Court
Santha Sivakumar vs The Secretary To Government on 7 September, 2021
WP.No.9765 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 07.09.2021
Coram:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.No.9765 of 2015
Santha Sivakumar .... Petitioner
Vs
1. The Secretary to Government,
Government of Tamil Nadu,
Highways Department,
Fort St. George,
Chennai – 600 009.
2. The Land Acquisition Officer cum
Revenue Divisional Officer,
Tambaram,
Chennai – 600 045. .... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
to issue a writ of declaration declaring that the acquisition of the petitioner's
land in S.No.4/1A1B2 measuring to an extent of 0.01.5 hectares in Uthandi
Village, Sholinganallur Taluk, Kancheepuram District, which was sought to
be acquired has become lapsed by virtue of Section 24(2) of Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (Act 30 of 2013).
1/10
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WP.No.9765 of 2015
For Petitioner : Mr.M.S.Subramanian
For Respondents : Mr.M.R.Gokul Krishnan,
Government Advocate
ORDER
This Writ Petition has been filed for issuance of Writ of Declaration
declaring that the acquisition of the petitioner's land in S.No.4/1A1B2
measuring to an extent of 0.01.5 hectares in Uthandi Village, Sholinganallur
Taluk, Kancheepuram District, which was sought to be acquired has become
lapsed by virtue of Section 24(2) of Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 (Act 30 of 2013).
2. The learned Government Advocate appearing 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 G.O.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, Highways and Minor Ports Department
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WP.No.9765 of 2015
alone is competent to decide the claim of the petitioner and to give any
relief to the petitioner based on the outcome of the above writ petition.
Hence, the first respondent is not a necessary party in the above writ
petition and the petitioner has unnecessarily impleaded the first respondent
as a party to the above writ petition. He further submitted that even if the
petitioner succeeds in the writ petition, the first respondent will not be in a
position to give any relief sought for by the petitioner since the subject
matter in the impugned Government Order is now under the administrative
control of the Highways Department.
3. In similar writ petitions, in respect of the related acquisition lands,
this Court appointed an Advocate Commissioner to conduct inspection with
regards to the status of the petitioner's property to ascertain the distance
between the East Coast Road and the petitioner's property. The Advocate
Commissioner filed report and stated that the petitioner has constructed his
house and obtained electricity service connection and living there. He also
mentioned the distance between the subject property of the petitioner and
the East Coast Road. In almost the writ petitions, the distance between the
subject property and the East Coast Road is not below 15 meters distance.
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WP.No.9765 of 2015
4. Therefore, the petitioner is in possession and enjoyment of the
subject property. It is also evident from the records produced by the
petitioner such as electricity consumption card and Property Tax receipt and
other revenue records to show that the petitioner is in possession and
enjoyment of his property. Insofar as the possession is concerned, notices
under Section 12(2) of the Land Acquisition Act dated 17.02.1988 and
22.01.1992 were issued only on 24.02.2014 by the second respondent.
5. On perusal of the said notice, revealed that on receipt of the said
notice, within a week from the date of receipt of notice, the land owner
shall appear before the second 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
Land Acquisition Act on 24.02.2014 shows that only to escape from the
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WP.No.9765 of 2015
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 property
has not been taken from the petitioner even till today. There is no evidence
to show that the compensation was also paid to the petitioner by court
deposit or by revenue deposit. In this regard, the learned counsel for the
petitioner 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.
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WP.No.9765 of 2015
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 case it has not
been deposited with respect to majority of land holdings
then all beneficiaries (landowners) as on the date of
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WP.No.9765 of 2015
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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WP.No.9765 of 2015
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
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WP.No.9765 of 2015
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 property from the petitioner and also he was 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.
7. Accordingly, the Writ Petition stands allowed and the entire
impugned proceedings are quashed. No order as to costs.
07.09.2021
Index : Yes / No
Internet : Yes
Lpp/mn
G.K.ILANTHIRAIYAN, J.
https://www.mhc.tn.gov.in/judis/
WP.No.9765 of 2015
Lpp/mn
To
1. The Secretary to Government,
Government of Tamil Nadu,
Highways Department,
Fort St. George,
Chennai – 600 009.
2. The Land Acquisition Officer cum
Revenue Divisional Officer,
Tambaram,
Chennai – 600 045.
W.P.No.9765 of 2015
07.09.2021
https://www.mhc.tn.gov.in/judis/
