Madras High Court
K.Sivakumar vs The Government Of Tamil Nadu Rep. ... on 10 July, 2023
W.A.No.1712 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.07.2023
CORAM:
THE HONOURABLE MR. JUSTICE D.KRISHNAKUMAR
AND
THE HONOURABLE MR. JUSTICE P.B.BALAJI
W.A.No.1712 of 2015
and M.P.No.1 of 2015
K.Sivakumar ... Appellant / Writ Petitioner
Vs.
1.The Government of Tamil Nadu rep. by
its Secretary to Government,
Housing & Urban Development Department,
Fort St.George, Chennai-600 009.
2.The Tamil Nadu Housing Board,
Rep. by its Chairman,
Anna Salai, Chennai-600 035.
3.The Special Officer (LA) IX,
Tamilnadu Housing Board Schemes,
Thirumangalam, Chennai-600 101.
4.The Executive Engineer & Administrative Officer,
Besant Nagar Division, Tamilnadu Housing Board,
48, Dr.Muthulakshmi Salai, Adyar,
Chennai-600 020. .. Respondents
1
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W.A.No.1712 of 2015
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent against the
order dated 01.09.2015 in W.P.No.13107 of 2014.
For Appellant : M/s.A.V.Arun
For Respondents : Mr.U.M.Ravichandran,
Special Government Pleader for R1
Mrs.C.Shyamala, Standing Counsel
for R2 to R4
JUDGMENT
[Judgment of the Court was made by D.KRISHNAKUMAR, J.]
The appellant is the writ petitioner. He made a challenge to the impugned
proceedings of the fourth respondent dated 28.02.2014, in and by which his claim
for reconveyance of the land in S.No.296/2 of Sholinganallur Village came to be
rejected, has filed W.P.No.13107 of 2014 and the writ petition came to be
dismissed, vide order dated 01.09.2015, against which the present writ appeal has
been filed.
2. The appellant / writ petition is the owner of the land comprised in
S.No.296/2 to an extent of 2400 Sq.Ft. in Sholinganallur Village. The said land
along with other lands comprised in the Lakshmi Nagar layout was subjected to
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W.A.No.1712 of 2015
Land Acquisition Proceedings in the year 1990. The first respondent issued a
Notification under Section 4(1) of the Land Acquisition Act, 1894 [hereinafter
referred to as "Old Act"] vide G.O.Ms.No.454 dated 23.05.1990, followed by a
Declaration under Section 6 of the said Act in G.O.Ms.No.996, Housing & Urban
Development Department dated 17.06.1991. Thereafter, an award came to be
passed in Award No.2 / 1993 dated 18.06.1993 by the third respondent. The
petitioner declined to receive any compensation pursuant to the award and the
compensation amount is deposited in the Revenue Deposit.
3. The appellant / writ petitioner, aggrieved by the land acquisition
proceedings, earlier had filed W.P.No.14353 of 1993, which was disposed of on
05.02.1996 with a direction to the second respondent to allot the plot, which was
proposed to be constructed under the land acquisition proceedings, on a
preferential basis. The land was acquired by the first respondent at the instance of
the second respondent for the purpose of housing scheme called "Sholinganallur
Neighbourhood Scheme Phase-II". According to the appellant/writ petitioner,
though the land was acquired at the instance of the second respondent, as early as
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W.A.No.1712 of 2015
in the year 1990, the second respondent did not take any steps to use the land for
any housing scheme or otherwise and the land is still kept vacant and no physical
possession has been taken by the second respondent in the manner known to law.
The appellant/writ petitioner made various representations to the second
respondent, followed by reminders seeking allotment of plots as per the order
dated 05.02.1996 in W.P.No.14354 of 1993. Since the second respondent failed
to pass orders on his representation, he filed W.P.No.1667 of 2000 seeking a Writ
of Mandamus directing the second respondent to pass orders on his representation
and this Court, by order dated 02.02.2000, was pleased to direct the respondents
to pass orders on his representation within a period of one month. However, the
second respondent did not pass any orders on his representation. The second
respondent has not taken any steps to develop the acquired land and has not at all
taken physical possession of the acquired land to develop it as planned.
4. According to the appellant / writ petitioner, since the respondent dropped
the scheme and kept the property idle from 1996, he made several representations
in person as well as through an association viz., "Sholinganallur Plot Owners
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W.A.No.1712 of 2015
Association" dated 19.08.1995, 02.01.1996, 18.08.1998 and 20.12.1998 along
with others to the first respondent seeking reconveyance of the land to him by
exercising their powers under Section 48(B) of the old Act, however, the
respondents have arbitrarily rejected the claim of the appellant/writ petitioner for
reconveyance of the land. According to the appellant, as per the new Act viz., The
Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, (Act No.30 of 2013) [in short "Fair Compensation Act"], if
the award amount has not been paid, the land acquisition proceedings initiated
against the old Act shall be deemed to have been lapsed. As per Section 24(2) of
the Fair Compensation Act, if the possession is not taken or the award amount has
not been paid, the proceedings covered under any previous notification as per the
old Act would lapse.
5. The second respondent has filed a counter affidavit stating that the land
in Survey No.297/1, 297/2A and 297/2B are situated at Sholinganallur Phase II
Scheme and the said lands are handed over to the Tamil Nadu Housing Board on
various dates from 18.04.1994 till 26.03.1996 by the Land Acquisition Officer for
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W.A.No.1712 of 2015
the implementation of Neighbourhood Scheme and since then, the lands vest with
the Tamil Nadu Housing Board [TNHB]. It is further stated in the counter
affidavit that TNHB has obtained all clearances from the appropriate departments
for the construction of 1500 multi storied flats and the construction is nearing
completion and the appellant cannot challenge the acquisition proceedings at a
belated stage, claiming any right under Section 24(2) of the Fair Compensation
Act.
6. Heard the learned counsel for the parties and perused the materials on
record.
7. The primordial contention of the appellant is that the possession of the
land in question has not been taken over by the land Acquisition Officer and
handed over to the respondents Board and therefore, the entire acquisition
proceedings is vitiated under the old Act. It is the case of the appellant / writ
petitioner that the compensation amount has not been paid and in pursuant to the
direction of this Court, the compensation has been calculated and deposited in the
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W.A.No.1712 of 2015
Registry of this Court and till date, the possession has not been taken by the Land
Acquisition Officer.
8. Admittedly, in the case on hand, the respondents had issued the Section
4(1) Notification on 23.05.1990 and Section 6 Declaration was published on
17.06.1991 and Award No.2/1993 was passed on 18.06.1993 and Section 12(2)
Notice was issued on 20.07.1993. It has been stated in the counter affidavit that
the compensation amount were already paid to the appellant on production of
original documents and the land acquisition officer has acquired the land and
handed over possession to the TNHB and the respondent Board has floated tender
for construction of multi storied building and obtained
permission/consent/approvals from various authorities and at this stage, the
appellant has made a request for reconveyance of the land. According to the
respondents, the entire lands were utilized for the Housing Scheme and as per the
new Act, the claim of the appellant cannot be considered.
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W.A.No.1712 of 2015
9. In para 8 of the Writ Court order, it has been stated that after the new Act
came into force on 01.01.2014, the appellant / writ petitioner has submitted his
representation on 04.02.2014 to the respondents and to the Executive Engineer,
Tamil Nadu Housing Board seeking reconveyance of the land, however, the
Executive Engineer, TNHB alone sent a reply dated 28.02.2014 expressing
inability to reconvey the land to him. Therefore, it is evident that possession was
already taken by the Land Acquisition Officer and handed over to TNHB. The
counter affidavit filed by the second respondent clearly states that possession has
been taken by the respondents Board and in pursuant thereto, consent from
various authorities were obtained for construction of multi storied housing
scheme. The Writ Court has passed orders in the light of the decision of the
Hon'ble Supreme Court in Pune Municipal Corporation and Another v.
Harakchand Misirmal Solanki and Others [(2014) 3 SCC 183]. The aforesaid
judgment has been clarified / overruled by the Hon'ble Supreme Court in Indore
Development Authority v. Manoharlal and Others [(2020) 8 SCC 129], wherein
it has been held as under:
"365.Resultantly, the decision rendered in Pune Municipal
Corpn. [Pune Municipal Corpn.v. Harakchand Misirimal Solanki,
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W.A.No.1712 of 2015
(2014) 3 SCC 183 : (2014) 2 SCC (Civ) 274] is hereby overruled and
all other decisions in which Pune Municipal Corpn. [Pune Municipal
Corpn. v. Harakchand Misirimal Solanki, (2014) 3 SCC 183 :
(2014) 2 SCC (Civ) 274] has been followed, are also overruled. The
decision in Sree Balaji Nagar Residential Assn. [Sree Balaji Nagar
Residential Assn. v. State of T.N., (2015) 3 SCC 353 : (2015) 2 SCC
(Civ) 298] cannot be said to be laying down good law, is overruled
and other decisions following the same are also overruled. In Indore
Development Authority v. Shailendra [Indore Development
Authority v. Shailendra, (2018) 3 SCC 412 : (2018) 2 SCC (Civ)
426] , the aspect with respect to the proviso to Section 24(2) and
whether “or” has to be read as “nor” or as “and” was not placed for
consideration. Therefore, that decision too cannot prevail, in the light
of the discussion in the present judgment.
366.3. 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 2013
Act 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."
In the light of the aforesaid decision of the Hon'ble Supreme Court, if any of the
conditions has been satisfied by the Respondents Board viz., taking over
possession or compensation amount has been paid, then the petitioner cannot
invoke Section 24(2) of the Fair Compensation Act, 2013.
10. Admittedly, in the case on hand, the respondents Board has taken
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W.A.No.1712 of 2015
possession of the lands in question even at the early stages during the years 1994
and 1996, the prayer sought for by the appellant/writ petitioner is legally
unsustainable, In the light of the decision of the Hon'ble Supreme Court. The
counter affidavit was filed by the second respondent during March 2017 and there
is no denial or evidence placed by the appellant for the aforesaid counter affidavit
of the second respondent as to the possession already taken. Even in the grounds
of appeal, the appeallant has raised the ground that on account of non-payment of
compensation, the entire proceedings would lapse as per Section 24(2) of the new
Act, despite knowing the fact that possession was already taken over by the
respondents Board. The Writ Court has considered all these aspects in proper
perspective and this Court finds no merit in the writ appeal and accordingly, the
same is liable to be dismissed.
11. At this juncture, the learned counsel for the appellant submitted that in
pursuant to the directions of this Court, the respondent Board has calculated the
compensation amount and the same has been deposited before the Registry of this
Court and therefore, he seeks for withdrawal of the amount by the appellant.
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W.A.No.1712 of 2015
12. Considering the above said facts, we are inclined to pass the following
order:
(i) The Writ Appeals Stands dismissed. No costs.
Consequently, connected miscellaneous petition is dismissed.
(ii) The respondents Board is directed to serve notice on the
interested parties, if any, for withdrawal of the compensation amount
by the appellant.
(iii) If any interested party makes any objection, it is open to the
interested parties concerned to seek their remedy before the
appropriate forum.
(iv) If there is no objection for withdrawal of compensation
amount by the appellant, a report shall be filed by respondent Board to
the Registry of this Court, with a copy served on the appellant, so as to
enable him to withdraw the amount, which is lying to the credit of the
writ appeal before the Regisry of this Court. On such report being
filed, the appellant shall make an application before the Registry for
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W.A.No.1712 of 2015
withdrawal of the compensation amount.
(v) The aforesaid exercise shall be completed within a period of
twelve weeks from the date of receipt of a copy of this order.
(D.K.K., J.) (P.B.B., J.)
10.07.2023
Intex : Yes/No
Internet : Yes/No
Jvm
To
1.The Secretary to Government,
The Government of Tamil Nadu,
Housing & Urban Development Department,
Fort St.George, Chennai-600 009.
2.The Chairman,
The Tamil Nadu Housing Board,
Anna Salai, Chennai-600 035.
3.The Special Officer (LA) IX,
Tamilnadu Housing Board Schemes,
Thirumangalam, Chennai-600 101.
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W.A.No.1712 of 2015
4.The Executive Engineer & Administrative Officer,
Besant Nagar Division, Tamilnadu Housing Board,
48, Dr.Muthulakshmi Salai, Adyar,
Chennai-600 020.
D.KRISHNAKUMAR, J.
and
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W.A.No.1712 of 2015
P.B.BALAJI, J.
Jvm
W.A.No.1712 of 2015
10.07.2023
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