Madras High Court

Sevanthiammal vs The Government Of Tamil Nadu on 28 September, 2021

W.P.No.11014 of 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 28.09.2021

CORAM

THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

W.P.No.11014 of 2018
1. Sevanthiammal
2. Thangammal
3. Jayanthi ... Petitioners
-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 Chairman,
Tamil Nadu Housing Board,
Nandanam, Chennai – 600 018.

3. The District Collector,
Salem District, Salem. ... Respondents
Prayer :- Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ Declaration, declaring that the Land
Acquisition Proceedings initiated by the respondents in respect of the
petitioners' land measuring 27 cents comprised in Patta No.446, Survey
No.114/2, Ayyamperumalpatti Village, Salem District under the Land
Acquisition Act, 1894, vide Section 4(1) notification published by the first
respondent in G.O.Ms.No.755 dated 04.09.1981 and Award No.3/86-87 dated
22.09.1986, as lapsed as per the 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.No.11014 of 2018

For Petitioners : Mr.A.Esakkiappan

For Respondents
For R1 & R3 : Mr.M.R.Gokul Krishnan
Government Advocate.
For R2 : Mr.I.Sathish,
Standing Counsel.
ORDER

This Writ Petition has been filed to declare that the Land

Acquisition Proceedings initiated by the respondents in respect of the

petitioners' land measuring 27 cents comprised in Patta No.446, Survey

No.114/2, Ayyamperumalpatti Village, Salem District under the Land

Acquisition Act, 1894, vide Section 4(1) notification published by the first

respondent in G.O.Ms.No.755 dated 04.09.1981 and Award No.3/86-87 dated

22.09.1986, as lapsed as per the Section 24(2) of the Right to Fair

Compensation and Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 (herein after referred to as “new Act”).

2. The case of the petitioners is that the land comprised in survey

No.114/2, to an extent of 27 cents situated at Ayyamperumalpatti Village,

Salem District owned by their father viz., Kolandaivel Gounder. Thereafter, he

executed Will in favour of the petitioners vide registered document No.300 of

1991 dated 09.07.1991. After demise of the said Kolandaivel Gounder on

26.01.2008, the petitioners are in possession and enjoyment of the subject https://www.mhc.tn.gov.in/judis/

W.P.No.11014 of 2018

property. Thereafter, they came to understand that by the G.O.Ms.No.755

dated 04.09.1981, the notification under Section 4(1) was issued under the

Land Acquisition Act, 1894 (herein after referred to as “old Act”) and the

subject land was acquired for neighbourhood scheme. The award has been

passed on 22.09.1986 in Award No.3 of 1986-87. However, the petitioners

were issued patta and they are in possession and enjoyment of the same.

Therefore, they challenged the acquisition proceedings under the new Act.

3. Heard, Mr.A.Essakkiappan, learned counsel appearing for the

petitioners, Mr.M.R.Gokul Krishnan, learned Government Advocate appearing

for the respondents 1 & 3 and Mr.I.Sathish, learned Standing Counsel

appearing for the second respondent.

4. On perusal of the counter affidavit filed by the second respondent

revealed that the second respondent proposed for housing scheme in survey

No.110/1 etc., to an extent of 32.44 acres, including the petitioners' land in

survey No.114/2 an extent of 0.27 acres situated at Ayyamperumalpatty

Village, Salem District. The notification under Section 4(1) of the Act was

approved by the G.O.Ms.No.755, Housing and Urban Development

Department, dated 04.09.1981. Thereafter, the notice was served to the said

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W.P.No.11014 of 2018

Kolandaivel Gounder as contemplated under Section 5 of the old Act.

5. After due enquiry, the draft declaration as contemplated under

Section 6 of the old Act was approved in G.O.Ms.No.725 Housing and Urban

Development Department, dated 21.04.1983 and the same was published on

04.05.1983. Thereafter, award equiry was conducted on 07.08.1986, after

service of notice under Sections 9(3) and 10 of the old Act to the petitioners'

father. Thereafter on 22.09.1986 the award was passed in Award N.3 of 1986-

87 and thereafter possession of the land was also taken over on 12.11.1986 and

handed over to the second respondent on the same day.

6. Insofar as the award amount is concerned, it was duly received by

the said Kolandaivel Gounder under Form-C by way of cheque from the Land

Acquisition Officer viz., the Special Thasildar. In fact, on his objections, the

case was referred under Section 18 of the Act and the same was numbered as

L.A.O.P.No.235 of 1988 on the file of the Subordinate Court, Salem. The said

Kolandaivel Gounder was examined as claimant witness No.7 and thereafter

the compensation was enhanced at Rs.3/- per Sq.ft. Though the Land

Acquisition Officer filed appeal before this Court in A.S.No.439 of 1997, the

same was dismissed and the enhanced compensation was deposited in the Sub

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W.P.No.11014 of 2018

Court, Salem on 10.09.1997. Therefore, the petitioners failed to satisfy the

twin conditions as contemplate under Section 24(2) of the new Act.

7. That apart, the grounds raised by the petitioners in this Writ

Petition 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 https://www.mhc.tn.gov.in/judis/

W.P.No.11014 of 2018

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 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 https://www.mhc.tn.gov.in/judis/

W.P.No.11014 of 2018

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.

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 https://www.mhc.tn.gov.in/judis/

W.P.No.11014 of 2018

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 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 subject land was acquired for the purpose of 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

Housing Board on 12.11.1986 itself. Further the compensation amount was

received by the land owner under “C” Form, from the Acquisition Officer and

the enhanced compensation amount has also been deposited before the Sub

Court, Salem on 18.09.2012.

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9. Therefore, the petitioners failed to satisfy the twin requirements