Madras High Court
T.Venkatesh @ T.Chinnabbiah vs State Of Tamil Nadu on 23 September, 2024
2024:MHC:3432
W.P.No.19766 of 2017 etc., batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.09.2024
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
W.P.No.19766, 21708, 21709, 21710, 25027, 30993, 30994, 30995 and
30996 of 2017, W.P.Nos.1449, 2946, 2947, 11869, 11870, 19927 and
19928 of 2018, W.P.No.11283 of 2019 and W.P.Nos.4898, 4899 and
4900 of 2021 and W.M.P.No.11639 of 2019
W.P.No.19766 of 2017:
1.T.Venkatesh @ T.Chinnabbiah
2.Chinnagurappa ... Petitioners
vs.
1.State of Tamil Nadu
Rep by its, Secretary to Government,
Housing and Urban Development Department
Secretariat, Chennai 600 009.
2.Tamil Nadu Housing Board
Rep by its Chairman – cum – Managing Director,
No.493, Anna Salai,
Chennai – 600 035.
3.The Executive Engineer,
Tamil Nadu Housing Board,
Bagalur Road,
Hosur,
Krishnagiri District.
1/18
https://www.mhc.tn.gov.in/judis
W.P.No.19766 of 2017 etc., batch
4.The Special Tahsildar,
Land Acquisition,
Housing Scheme,
Bagalur Road,
Hosur, Krishnagiri District. ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Declaration, declaring that the Land Acquisition
Proceedings initiated under the Land Acquisition Act, 1894 in respect of
land bearing Plot No.29 measuring an extent of 1440 Sq.Ft comprised in
Survey No.863 of Chennathur Village, Hosur Taluk, Krishnagiri District
covered by Notification issued under Section 4(1) of the Land Acquisition
Act, 1894 in G.O.Ms.No.890, Housing and Urban Development
Department, dated 29.05.1991 and Section 6 Declaration in G.O.Ms.No.691
Housing and Urban Development Department, dated 09.10.1992 deemed to
have lapsed in view of Section 24(2) of Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013.
For Petitioners : Mr.R.Bharath Kumar
(in all WPs)
For R1 and R4 : Mr.P.Kumeresan
Additional Advocate General
Assisted by M/s.R.L.Karthiga
(in all WPs)
For R2 and R3 : Mr.S.Ramachandran
(in all WPs)
2/18
https://www.mhc.tn.gov.in/judis
W.P.No.19766 of 2017 etc., batch
COMMON ORDER
These Writ Petitions are filed seeking a declaration that Land
Acquisition Proceedings initiated under the Land Acquisition Act, 1894 in
respect of the petitioners land situated in Survey Nos.863, 864 and 844 of
Chennathur Village, Hosur Taluk, Krishnagiri District, covered by
Notification issued under Section 4(1) of the Land Acquisition Act,1894, in
G.O.Ms.No.890, Housing and Urban Development Department, dated
29.05.1991 and Section 6 Declaration in G.O.Ms.No.691, Housing and
Urban Development Department, dated 09.10.1992 deemed to have lapsed
in view of Section 24(2) of Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013.
2. It is the case of the petitioners that they purchased house sites with
small extent in a layout called as ‘Ragavendra Nagar’ situated in Survey
Nos.863, 864 and 844 situated at Chennathur Village of Hosur Taluk,
Krishnagiri District during the year 1988 and 1989 through registered Sale
Deeds from previous owners. The 1st respondent issued 4(1) notification for
acquisition of lands situated in Survey Nos.863, 864 and 844 for formation
https://www.mhc.tn.gov.in/judis
W.P.No.19766 of 2017 etc., batch
of Housing Scheme to be promoted by 2nd respondent. The 4(1) notification
was issued on 29.05.1991. Subsequently, Section 6 declaration was made on
09.10.1992. The acquisition proceedings were challenged by the petitioners
through an association called as ‘Sri Ragavendra Nagar Residents Welfare
Association’ in W.P.No.13943 of 1994 and an interim stay of dispossession
was also obtained. The writ petition came to be dismissed on 20.07.2001.
Sri Ragavendra Nagar Residents Welfare Association filed W.A.No.2832 of
2004 and the same was disposed on 02.08.2004 with the following
observation:-
“4. Mr.Subba Reddy, learned counsel for the appellant
submitted that as yet the possession has not been taken over
even though twelve years have passed after the notification
was issued and that he is still in possession of the property. It
is for the appellant to choose to file a proper application under
Section 48B of the Land Acquisition Land and if such an
application is filed it is for the authority to consider it in
accordance with law.”
3. It is asserted by the petitioners that though 6 declaration was made
as early as 09.10.1992, physical possession has not been taken over by the
https://www.mhc.tn.gov.in/judis
W.P.No.19766 of 2017 etc., batch
respondents and petitioners continued to be in possession of their property.
It is also averred in the affidavit filed in support of these writ petitions that
though award was passed on 10.10.1994 vide Award No.27/1994, the
compensation amount has not been paid to the petitioners. Therefore, it is
the contention of the learned counsel appearing for the petitioners that the
twin conditions laid down in the case of Indore Development Authority vs.
Manoharlal and others reported in 2020 SCC Online SC 316 had been
satisfied and as a consequence, land acquisition proceedings got lapsed
under Section 24(2) of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013.
4. Per contra, Mr.P.Kumeresan, learned Additional Advocate General
appearing for the respondents 1 and 4 and Mr.S.Ramachandran, learned
counsel appearing for the respondents 2 and 3 by taking this Court to the
Possession Certificate dated 12.12.1994 and 18.03.2002 submitted that
possession of the writ petitioners land in Survey No.844 was taken over on
12.12.1994 and possession of the land in Survey Nos.863 and 864 were
taken over on 18.03.2002. The learned Additional Advocate General further
submitted that the award was passed as early as 10.10.1994 and the award
https://www.mhc.tn.gov.in/judis
W.P.No.19766 of 2017 etc., batch
amount was deposited in treasury account as early as 16.02.1995. Therefore,
it is the specific submission of the learned Additional Advocate General and
the learned counsel appearing for the Housing Board that both the
conditions mentioned in Indore Development Authority case are not
satisfied in these cases. The learned Additional Advocate General further
submitted that even if any one of the conditions mentioned in Indore
Development Authority case is not satisfied, there is no lapse under Section
24(2) of New Act. However, in the case on hand, according to the learned
Additional Advocate General both the conditions mentioned in the Indore
Development Authority case are not satisfied and therefore, all the writ
petitions are liable to be dismissed.
5. In Indore Development Authority case cited supra, the Apex Court
laid down under what circumstances the acquisition proceedings initiated
under Old Act will get lapsed under Section 24(2) of New Act, the relevant
observation of the Apex Court reads as follows:-
“402.(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
https://www.mhc.tn.gov.in/judis
W.P.No.19766 of 2017 etc., batch
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.”
6. Therefore, in order to hold that land acquisition proceedings
initiated under Old Act got lapsed under Section 24(2) of New Act of 2013
following conditions shall be satisfied:-
(i) The award should have been passed five years prior to the
commencement of the New Act and the same shall be accompanied by
following two conditions:-
(a) Physical Possession of the land should not have been taken.
(b) Compensation should not have been paid to the land owners.
Therefore, in all cases where land acquisition proceedings had been initiated
under the Old Act and an award had been passed five years prior to the
coming into force of the New Act, the Proceedings under the Old Act will
https://www.mhc.tn.gov.in/judis
W.P.No.19766 of 2017 etc., batch
get lapsed under Section 24(2) of New Act, if following two conditions are
satisfied:-
(a) physical possession has not been taken from the land owners;
(b) compensation amount has not been paid to the land owners;
7. In the case on hand, admittedly award had been passed long back,
well prior to coming into force of New Act. In the light of the law laid down
by the Apex Court in Indore Development Authority case, we have to see
whether the twin conditions laid therein are satisfied in the present case. In
the affidavit filed in support of these writ petitions, it was asserted by the
petitioners that physical possession has not been taken over from them.
However, in the counter affidavit filed on behalf of the respondents, it has
been stated that in respect of lands in Survey No.844, physical possession
had been taken on 12.12.1994 and in respect of lands in Survey Nos.863
and 864, physical possession had been taken on 18.03.2002. In support of
the said averment in the counter affidavit, the certificates signed by Higher
Grade Revenue Inspector, Housing Project, Hosur and Chief Surveyor,
Tamil Nadu Housing Board, Hosur, dated 12.12.1994 and 18.03.2002 are
filed in the typed-set of papers filed by the respondents.
https://www.mhc.tn.gov.in/judis
W.P.No.19766 of 2017 etc., batch
8. A perusal of the certificates would suggest that the Possession
Certificates were signed only by the officers of the respondents and no
signature was obtained from petitioners or any respectable persons living in
the locality. In Indore Development Authority case, while considering the
question of taking possession from the land owners under Land Acquisition
Proceedings, the Apex Court categorically held that preparation of
Memorandum or Panchnama by the Land Acquisition Officer in the
presence of witnesses would constitute a mode of taking possession of the
land, the relevant observation reads as follows:-
“294. In Tamil Nadu Housing Board v. A. Viswam,
(supra) it was held that drawing of Panchnama in the presence
of witnesses would constitute a mode of taking possession. This
court observed:
“9. It is settled law by series of judgments of this
Court that one of the accepted modes of taking possession of
the acquired land is recording of a memorandum or
Panchnama by the LAO in the presence of witnesses signed by
him/them and that would constitute taking possession of the
land as it would be impossible to take physical possession of
the acquired land. It is common knowledge that in some cases
https://www.mhc.tn.gov.in/judis
W.P.No.19766 of 2017 etc., batch
the owner/interested person may not cooperate in taking
possession of the land.”
9. Ultimately, in Paragraph No.311, it was categorically held as
follows:-
“311. ... ... ... ... We hold that drawing of Panchnama of
taking possession is the mode of taking possession in land
acquisition cases, thereupon land vests in the State and any re-
entry or retaining the possession thereafter is unlawful and
does not inure for conferring benefits under section 24(2) of
the Act of 2013.”
10. In concluding Paragraph No.402.(7), it was observed as follows:-
“402.(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).”
11. Therefore, it is very clear that the accepted mode of taking
possession in land acquisition cases as categorically held by Constitution
https://www.mhc.tn.gov.in/judis
W.P.No.19766 of 2017 etc., batch
Bench Judgment in Indore Development Authority case, is drawing of
Panchnama/Memorandum by the Land Acquisition Officer in the presence
of witnesses. In the case on hand, the Possession Certificates relied on by
the respondents are documents signed by Officers of the respondent's
Department and Housing Board and the signatures of the independent
witnesses do not find place. Therefore, it cannot be treated as drawing of
Memorandum/Panchnama as held in Indore Development Authority case.
12. When the respondents are not able to produce Panchnama signed
by independent witnesses to establish that the possession was indeed taken
from the petitioners, I am unable to accept the contention raised on behalf of
the respondents that possession was taken from the petitioners. The
Possession Certificates relied on by the respondents signed by the Officers
of the Housing Board and respondent's Department cannot be safely relied
upon as a document evidencing taking possession, in the absence of
signatures of independent witnesses as held in the Indore Development
Authority case. Further, there is no evidence available on record to show
that subject lands were developed by the Housing Board and sold to the
third parties. No Sale Deeds in favour of third parties have been produced
https://www.mhc.tn.gov.in/judis
W.P.No.19766 of 2017 etc., batch
before this Court. Though a layout drawing prepared by Executive Engineer
of Hosur Housing Unit was produced before this Court as if the lands in
Survey Nos.863, 864 and 844 were also part of the layout drawings, a close
scrutiny of the same would suggest that the drawing was not approved by
the Competent Planning Authority. It is only a layout drawing prepared by
the Officers of the Housing Board, not approved by the Planning Authority.
Therefore, it is clear that respondents are not able to produce any material to
show that lands in question were taken over and utilised for Housing
Schemes promoted by the Housing Board. In such circumstances, I have no
hesitation in coming to the conclusion that the respondents failed to
establish the subject lands were taken over from writ petitioners.
13. Coming to the question of payment of compensation, it was
asserted by the petitioners that the compensation amount was not paid to
them. On the other hand, it was contended by the respondents that at the
time of passing award on 10.10.1994, there was a stay of dispossession
obtained by Sri Ragavendra Nagar Residents Welfare Association in
W.P.No.13943 of 1994 and therefore, the amount was directed to be
deposited in court. The learned Additional Advocate General also drawn the
https://www.mhc.tn.gov.in/judis
W.P.No.19766 of 2017 etc., batch
attention of this Court to the Challan dated 16.02.1995 to fortify his
contention that compensation amount was deposited in Treasury Account.
14. A reading of Award dated 10.10.1994 in Award No.27/1994
would suggest that in view of stay by this Court, the compensation amount
was directed to be deposited before the Court. However, the respondents
have not deposited the amount before the Court but deposited it in Treasury
Account as seen from the copy of Challan included in the respondent's
typed-set of papers. As rightly pointed out by the learned counsel appearing
for the petitioners that in the backside of the Challan while mentioning the
award number, it was originally written as 25/94 and thereafter, it was
rounded and corrected as 27/94. Further, the date of award was mentioned
as 12.10.1994 as against actual date of 10.10.1994. Therefore, it is not clear
whether the Challan dated 16.02.1995 produced in the typed-set of papers
filed by the respondents is relating to the Award No.27/94 or 25/94. Further,
in Indore Development Authority case, while considering the question of
payment of compensation amount to the land owners, the Apex Court held
as follows:-
https://www.mhc.tn.gov.in/judis
W.P.No.19766 of 2017 etc., batch
“402.(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.”
15. Therefore, it is clear that there must be some evidence on the part
of respondents to show that compensation amount was actually tendered to
the land owners and they refused to receive the same and as a consequence,
the amount was either deposited in the court deposit or in the treasury
deposit. In the case on hand, absolutely there is no evidence available on
record to show that the amount was tendered to the land owners and refused
by them. In the award, it was stated that in view of pendency of writ petition
and interim stay of dispossession, the amount was directed to be deposited
in the court. However, the respondents have not deposited the amount
before the Court but deposited it in treasury account.
https://www.mhc.tn.gov.in/judis
W.P.No.19766 of 2017 etc., batch
16. As per the law laid down in Indore Development Authority case,
even if amount is deposited in the interest earning treasury account that is
sufficient provided prior to the deposit, amount was tendered to the land
owners and refused by them. The writ petition filed by the petitioner was
dismissed as early as 20.07.2001 and writ appeal filed by the petitioner was
also disposed of as early as 02.08.2004. The respondents could have atleast
tendered the amount to the land owners after disposal of the writ appeal.
Now, 20 years have gone from the date of disposal of writ appeal, still the
amount appeared to be in treasury deposit. Absolutely, there is no evidence
available on record to show why there was no attempt made by the
respondents to tender the amount to the land owners atleast after disposal of
the writ appeal in the year 2004.
17. It is also brought to the notice of this Court that similar writ
petitions filed by the other land owners covered by the same Land
Acquisition Notification in W.P.No.27224 of 2014 and W.P.Nos.9753 to
9755 of 2015 and the same were allowed by this Court by order dated
04.04.2016 declaring lapse of land acquisition notification issued under Old
Act.
https://www.mhc.tn.gov.in/judis
W.P.No.19766 of 2017 etc., batch
18. In such circumstances, I have no hesitation in coming to the
conclusion that the respondents failed to show that the compensation
amount was tendered to the land owners and refused by them. The
respondents have not produced any document to show that the amount was
tendered to the petitioners or the previous land owners in whose favour the
revenue records stood at the time of acquisition. Mere deposit of the
compensation amount in the treasury account would not amount to
tendering of the compensation amount to the land owners. Therefore, I hold,
the respondents failed to establish that compensation amount was actually
tendered to the land owners and refused by them.
19. In view of the discussion made earlier, the twin conditions
mentioned in Indore Development Authority case namely failure to take
possession from the land owners and failure to tender the compensation
amount to the land owners are satisfied in the present case. Therefore, the
Land Acquisition Proceedings initiated under the Old Act got lapsed under
Section 24(2) of Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013.
https://www.mhc.tn.gov.in/judis
W.P.No.19766 of 2017 etc., batch
20. Accordingly, all the Writ Petitions are Allowed. No costs.
Consequently, the connected writ miscellaneous petition is closed.
23.09.2024
Index : Yes
Speaking order:Yes
Neutral Citation:Yes
dm
To
1.The Secretary to Government,
State of Tamil Nadu
Housing and Urban Development Department
Secretariat, Chennai 600 009.
2.The Chairman – cum – Managing Director,
Tamil Nadu Housing Board
No.493, Anna Salai,
Chennai – 600 035.
3.The Executive Engineer,
Tamil Nadu Housing Board,
Bagalur Road,
Hosur, Krishnagiri District.
4.The Special Tahsildar,
Land Acquisition, Housing Scheme,
Bagalur Road, Hosur, Krishnagiri District.
https://www.mhc.tn.gov.in/judis
W.P.No.19766 of 2017 etc., batch
S.SOUNTHAR, J.
dm
W.P.No.19766 of 2017 etc., batch
23.09.2024
https://www.mhc.tn.gov.in/judis
