Madras High Court
R.Kuppan vs The Government Of Tamil Nadu on 21 September, 2021
W.P.Nos.34190 & 34191 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.09.2021
CORAM :
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.Nos.34190 & 34191 of 2014 and
MP.Nos.1 & 1 of 2014 and
MP.Nos.1 &1 of 2015
WP.No.34190 of 2014
R.Kuppan ... Petitioner
-Vs-
1.The Government of Tamil Nadu,
Rep. by the Secretary to the Government,
Housing and Urban Development Department,
Fort St.George,
Chennai 600 009
2.The Special Thasildar (Land Acquisition),
Tamil Nadu Housing Board Schemes,
Nandanam, Chennai 600 035
3.The Secretary,
Tamil Nadu Housing Board,
Nandanam, Chennai 600 035
4.The Executive Engineer and
Administrative Officer,
K.K.Nagar Division,
Tamil Nadu Housing Board,
Chennai 600 083 ... Respondents
Prayer :- Writ Petition filed under Article 226 of the Constitution of India
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W.P.Nos.34190 & 34191 of 2014
praying for the issuance of a writ of declaration declaring that the entire land
acquisition proceedings initiated under the Land Acquisition Act, 1894 in
respect of the lands to an extent of 39.5 cents in survey 30 forming part and
parcel of 2.91 acres in survey Nos.30 and 31 at Porur village, Ambattur Taluk,
Thiruvallur District duly mentioned by the fourth respondent in letter
No.KKNS/4795/11-3 dated 09.12.2014 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).
For petitioner : Mr.S.Sadasharam
For Respondents
For R1 & 2 : Mr.Richardson Wilson,
Government Advocate
For R3 & 4 : Mr.M.Baskar,
Standing Counsel
WP.No.34191 of 2014
V.Rajabather ... Petitioner
-Vs-
1.The Government of Tamil Nadu,
Rep. by the Secretary to the Government,
Housing and Urban Development Department,
Fort St.George,
Chennai 600 009
2.The Special Thasildar (Land Acquisition),
Tamil Nadu Housing Board Schemes,
Nandanam, Chennai 600 035
3.The Secretary,
Tamil Nadu Housing Board,
Nandanam, Chennai 600 035
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W.P.Nos.34190 & 34191 of 2014
4.The Executive Engineer and
Administrative Officer,
K.K.Nagar Division,
Tamil Nadu Housing Board,
Chennai 600 083 ... Respondents
Prayer :- Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a writ of declaration declaring that the entire land
acquisition proceedings initiated under the Land Acquisition Act, 1894 in
respect of the lands to an extent of 17 cents in survey 31 forming part and
parcel of 2.91 acres in survey Nos.30 and 31 at Porur village, Ambattur Taluk,
Thiruvallur District duly mentioned by the fourth respondent in letter
No.KKNS/4795/11-3 dated 09.12.2014 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).
For petitioner : Mr.S.Sadasharam
For Respondents
For R1 & 2 : Mr.Richardson Wilson,
Government Advocate
For R3 & 4 : Mr.M.Baskar,
Standing Counsel
COMMON ORDER
The writ petitions have been filed to issue a writ of declaration
declaring that the entire land acquisition proceedings initiated under the Land
Acquisition Act, 1894 in respect of the lands to an extent of 39.5 cents and 17
cents in survey 30 & 31 forming part and parcel of 2.91 acres in survey Nos.30
and 31 at Porur village, Ambattur Taluk, Thiruvallur District duly mentioned
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W.P.Nos.34190 & 34191 of 2014
by the fourth respondent in letter No.KKNS/4795/11-3 dated 09.12.2014 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).
2. The case of the petitioners is that the land admeasuring 146.17 acres
situated at Porur Village was sought to be acquired by the Government for
development of new Ramapuram Neighborhood Scheme in the year 1975. The
notification under Section 4(1) of the Land Acquisition Act (hereinafter called
as 'the Act') was issued on 11.06.1975 and the declaration under Section 6 (1)
of the Act was issued on 09.06.1978 by GO.Ms.No.974. Out of total extent of
146.17 acres, the petitioners' family owned land in survey Nos.30 and 31 in
total 2.91 acres in Porur village. They challenged the acquisition proceedings
in WP.Nos.3990 and 3991 of 1986. Though both the writ petitions were
allowed on 08.10.1991, the first respondent filed writ appeals and the same
were allowed in WA.Nos.11 & 12 of 1994 by order dated 16.11.1996.
Thereafter, the possession of the land in survey No.30 to an extent of 1.87
acres and to an extent of 0.76 acres in survey No.31 part, which were vacant at
the time of inspection was handed over to the Tamil Nadu Housing Board as
early as on 27.01.2011. Out of total extent of 1.04 acres in survey No.31, only
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W.P.Nos.34190 & 34191 of 2014
a part of the land admeasuring 76 cents was handed over to the Tamil Nadu
Housing Board and the remaining extent of 28 cents were encroached by
structures. Action is being taken to evict the encroachments and surrender the
possession under Section 47 of the Land Acquisition Act. However, the case
of the petitioners is that the legal heirs of their ancestors totally 14 in number
and they had oral partition among themselves by dividing 146 acres.
2.1 The further case of the petitioners is that by virtue of the said oral
partition, all the family members applied for patta and they were granted patta.
In fact, some of them put up construction and paid planning charges and OSR
charges to the Town Panchayat and CMDA. After acquisition proceedings, the
petitioners submitted representation dated 13.02.2011 for reconveyance of
their respective portion of the land. The representations were not considered
and as such filed writ petitions before this Court in WP.Nos.5062 & 5319 of
2011. In the said writ petitions, this Court granted interim injunction and
subsequently, the petitioners also filed suit in OS.No.7073 of 2011 for
permanent injunction restraining the third respondent from disturbing the
peaceful possession and enjoyment of the suit property except under due
process of law on the file of the XVI City Civil Court, Chennai. The fourth
respondent issued notice under Section 84(2) of the Tamilnadu Housing Board
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W.P.Nos.34190 & 34191 of 2014
and directed the petitioner to vacate the premises within a period of 15 days.
Now, these writ petitions have been filed challenging the very acquisition
proceedings on the ground that the compensation has not been paid and the
possession has not been taken over.
3. The respondents 3 and 4 filed counter, which revealed that the Tamil
Nadu Housing Board requested to acquire an extent of 146.17 acres of land at
Porur Village for the formation of New Ramapuram Neighbourhood Scheme.
Accordingly, notification under Section 4(1) of the Act was approved by the
Government in GO.Ms.No.412 Housing Department dated 09.05.1975 and
published vide notification dated 11.06.1975. The Special Deputy Collector
(Land Acquisition), Tamil Nadu Housing Board Scheme was authorised under
Section 3(1) of the Act to perform the function of the Collector under Section
5A of the Act. After serving notice under Section 5-A of the Act, enquiry was
conducted on 22.01.1976 and 23.01.1976. The gist of the objections received
during the enquiry were placed before the requisitioning body and the remarks
of the requisitioning body were communicated to the objectors and their
acknowledgments have also been filed. By order dated 07.06.1978, the
Government approved the declaration under Section 6 of the Act in respect of
various part of the lands after considering the objections raised by the land
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W.P.Nos.34190 & 34191 of 2014
owners at the time of 5-A enquiry on 09.06.1978 and the same was approved
by the Government by order dated 13.10.1978 and the same was published in
the Tamil Nadu Government Gazattee on 15.11.1978. The enquiry under
Section 11 of the Act was conducted on 27.03.1980 and on subsequent dates
after serving individual notice as contemplated under Sections 9(3) and 10 of
the Act.
3.1 Further revealed that the award has been passed in award No.8 of
1986 on 19.09.1996. As per the award, the land comprised in survey No.30 for
an extent of 1.87 acres stands registered in the name of Babu Naicker S/o
Murugappa Naicker, Ramanatha Naicker, Velu Naicker under patta No.148 as
per revenue records and the lands comprised in survey No.31 to an extent of
1.04 acres registered in the name of Babu Naicker, Velu Naicker, Ranganathan
under patta No.148 of Porur village and the award amount has been deposited
in the civil court deposit since due to the writ petitions filed by the petitioners
in WP.Nos.3990 and 3991 of 1986, the possession of the property could not be
handed over to the requisitioning body. However, after the order passed in the
writ appeals in WA.Nos.11 and 12 of 1994, the possession of the land has been
taken over and handed over to the Tamil Nadu Housing Board on 27.01.2011.
It is also to be noted that the petitioners filed batch of writ petitions in
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W.P.Nos.34190 & 34191 of 2014
WP.Nos.5306 to 5319 of 2011 and this Court granted interim order dated
04.03.2011as follows: “There shall be an order of interim injunction till then,
if the petitioners had not been dispossessed, till date. Whereas the land
comprised in survey Nos.30 and 31 part to an extent of 2.63 acres have already
been taken over by the Land Acquisition Officer as early as on 27.01.2011
prior to the interim order dated 04.03.2011 passed in the batch of writ
petitions. In fact thereafter some of the land owners attempted to construct
compound wall and as such the Tamil Nadu Housing Board lodged complaint
before the Inspector of Police, R9 Valasaravakkam Police Station, Chennai
and the same has been received in CSR.Nos.163 of 2012 and 218 of 2013 on
the file of the Sub Inspector of Police, R11, Rayala Nagar Police Station,
Ramapuram. The petitioners have also filed suit in OS.No.7073 of 2011 on the
file of the XVI City Civil Court, Chennai for permanent injunction. By
judgment and decree dated 28.10.2014, wherein ordered that there is no bar to
take action against the petitioners as per law and after serving due notice to the
petitioners and granted permanent injunction.
4.Heard, Mr.S.Sadasharam, the learned counsel for the petitioners,
Mr.Richardson Wilson, Government Advocate appearing for the respondents 1
& 2, and Mr.M.Baskar, Standing Counsel appearing for the respondents 3 & 4.
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W.P.Nos.34190 & 34191 of 2014
5. As stated above, already they were duly served notices and possession
of the properties had been already taken over and handed over the possession
to the Tamil Nadu Housing Board as early as on 27.01.2011. Now these writ
petitions have been filed on the ground that the possession has not been taken
over and the award amount has not been deposited by invoking Section 24 (2)
of the Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013.
6. As stated supra, the award amount has been deposited in the civil
court deposit as early as on 24.03.1987 and 27.03.1987 as per the award in
respect of the land comprised survey No.30 admeasuring 1.87 acres. Insofar as
the land comprised in survey No.31 to an extent of 1.04 acres had been already
deposited on 29.10.1986. In fact, the petitioners were also issued show cause
notice under Section 84(2) of the Tamil Nadu Housing Board Act on
09.12.2014. These writ petitions have been field on the show cause notice by
the Tamil Nadu Housing Board. Therefore, the petitioners failed to make out
the case as contemplated under Section 24 (2) of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013.
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W.P.Nos.34190 & 34191 of 2014
7. 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:
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
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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 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
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W.P.Nos.34190 & 34191 of 2014
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.
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
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W.P.Nos.34190 & 34191 of 2014
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
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.”
8. 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 acquisition proceedings have been completed and the subject land was
taken over by the government and the same was handed over to the requisition
body. Further the requisition body also deposited the compensation as awarded
by the Land Acquisition Officer. Therefore, the petitioners 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 over 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.34190 & 34191 of 2014
to Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013. In view of the settled position of law, the writ
petitions are devoid of merits and liable to be dismissed.
9. Accordingly, both the writ petitions are dismissed. Consequently,
Connected miscellaneous petitions are closed. No order as to costs.
21.09.2021
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
lok
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W.P.Nos.34190 & 34191 of 2014
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W.P.Nos.34190 & 34191 of 2014
G.K.ILANTHIRAIYAN, J.
lok
To
1.The Secretary to the Government,
Government of Tamil Nadu,
Housing and Urban Development Department,
Fort St.George,
Chennai 600 009
2.The Special Thasildar (Land Acquisition),
Tamil Nadu Housing Board Schemes,
Nandanam, Chennai 600 035
3.The Secretary,
Tamil Nadu Housing Board,
Nandanam, Chennai 600 035
4.The Executive Engineer and
Administrative Officer,
K.K.Nagar Division,
Tamil Nadu Housing Board,
Chennai 600 083
W.P.Nos.34190 & 34191 of 2014
21.09.2021
https://www.mhc.tn.gov.in/judis
