Mrs.Babyammal v. The Government Of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 29.11.2021

CORAM

THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN W.P.NO.10639 OF 2015 AND MP.NOS.1 & 2 OF 2015 1.Babyammal 2.G.Jothilingam 3.N.Tulasi 4.G.Basker 5.G.Thenarasu 6.G.Narendharan 7.G.Manivannan ... Petitioners Vs

1. The Government of Tamil Nadu Represented by its Secretary Housing and Urban Development Department , Chennai - 600 009.

2. The District Revenue Officer, Land Acquisition, Outer Ring Road Project, CMDA Koyambedu, Chennai 600 092

3. The Special Tahsildar, Land Acquisition, Outer Ring Road Project Unit - IV, Chennai Metropolitan Development Authority, Egmore, Chennai - 600 008.

... Respondents PRAYER:- Writ Petition is filed under Article 226 of Constitution of India, praying to issue a Writ of Certiorari to call for the records on the file of the respondents relating to the Section 4

(1) Notification of the Land Acquisition Act 1894 dated 02.08.2000 in (GO.Ms.No.280 Housing and Urban Department (UD3(2) 06.07.2000) , and Section 6(1) Declaration of the Land Acquisition Act 1894 dated 08.08.2001 in (GO.Ms.No.348, Housing and Urban Development (UD3(2) 08.08.2001) respectively pertaining to lands measuring an extent of 500 sq.mts. in Survey No. 68/3A, in Patta No.261 at 16, Karunakaracheri, Poonamallee Taluk, Tiruvallur District by virtue of Section 24(2) of The

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (Act 30 of 2013) and to quash the same.

For Petitioners : Mr.David Tyagaraj For Respondents : Mr.A.Selvendran, Special Government Pleader

O R D E R

This writ petition is filed to issue a Writ of Certiorari to call for the records on the file of the respondents relating to the Section 4(1) Notification of the Land Acquisition Act 1894 dated 02.08.2000 in (GO.Ms.No.280 Housing and Urban Department (UD3(2) 06.07.2000) , and Section 6(1) Declaration of the Land Acquisition Act 1894 dated 08.08.2001 in (GO.Ms.No.348, Housing and Urban Development (UD3(2) 08.08.2001) respectively pertaining to lands measuring an extent of 500 sq.mts. in Survey No. 68/3A, in Patta No.261 at 16, Karunakaracheri, Poonamallee Taluk, Tiruvallur District by virtue of Section 24(2) of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (Act 30 of 2013) and to quash the same.

2. The case of the petitioners is that the first petitioner's husband owned property comprised in Survey No. 68/3A, in Patta No.261 at 16, Karunakaracheri, Poonamallee Taluk, Tiruvallur District. He died on 14.04.1976. However, order dated 12.05.1997 was passed by the competent authority on a dead person under Section 9(5) of the Urban Land Act, 1978 as amended. The notice under Section 12(2) of the Land Acquisition Act, 1894 was also not issued to the petitioners. Though the respondents have taken symbolic possession of the lands, physical possession still continues with the petitioners.

3. Mr.David Tyagaraj, learned counsel for the petitioners submitted that the entire acquisition proceedings is bad in law under the Land Acquisition Act, 1894 since the repealed Act viz., the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 is applicable and the principles laid down under Section 24(2) is applicable to the case of hand. Therefore, the notification under Section 4(1) and Section 6(1) Declaration under the old Act are liable to be quashed. The 4(1) notification has been issued in the name of a dead person which cannot be sustained.

4. However, names of some of the petitioners did not find in the Section 6 Declaration and also does not find some of the

petitioners name. Further, no notice of inquiry was issued under Section 5A of the Land Acquisition Act. The possession of the proposed land to be acquired is continuously in the possession and enjoyment of the petitioners. So far, no compensation has been deposited and no compensation is received by the petitioners.

Therefore, the entire acquisition proceedings have been lapsed as per Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

5. Mr.A.Selvendran, Special Government Pleader appearing for the respondents submitted that the acquisition proceedings were initiated for the Project of Outer Ring Road for the land admeasuring 12.96.0 Hec. situated at Karunakaracheri Village, Poonamallee Taluk, Tiruvallur District under the Land Acquisition Act. The subject property in this writ petition admeasuring 500 sq.mtrs comprised in Survey No.68/3A was also acquired. The notification under Section 4(1) of the Act was approved by the Government in G.O.Ms.No.280 dated 06.07.2000. In fact, the petitioners had knowledge about the 4(1) notification and the inquiry was conducted on 29.09.2000, 03.10.2000, 04.10.2000 and 05.10.2000 as contemplated under Section 5A of the Land Acquisition Act.

6. The physical possession of the subject property had already been taken as early as 18.12.2003 and the compensation amount was also kept under the Revenue Deposit on 18.11.2003. Thereafter, the subject land was handed over to the requisitioning body namely the second respondent herein on 18.12.2003. In fact, the final notice regarding taking over possession under Section 13 of the Survey and Boundaries Act, 1923 was also published in the Tiruvallur District Gazette No.21 dated 14.06.2004.

7. It is also revealed that the notice under Section 9(3) and 10 of the Land Acquisition Act were issued to the petitioners requesting them to appear for award inquiry and to produce the original documents to prove the ownership of the land comprised in Survey No.68/3A. However, petitioners have not appeared for inquiry.

8. Therefore, though the notification issued under Section 4(1) of the Land Acquisition Act in the name of dead person, the petitioners being the legal heirs of the deceased Ganesan had knowledge over the notification and they duly attended the inquiry conducted under Section 5A of the Land Acquisition Act. They also raised their objections and sought for compensation to be paid to all the legal heirs equally.

9. Therefore, the petitioners, being the legal heirs of the

said Ganesan had knowledge about the 4(1) notification and they have attended the inquiry conducted under Section 5A of the Land Acquisition Act and raised their objections. Therefore, there is no prejudice caused to the petitioners by issuance of notification under Section 4(1) of the Land Acquisition Act in the name of dead person namely the first petitioner's husband Ganesan.

10. In so far as the compensation is concerned, the entire award amount was kept under Revenue Deposit on 18.11.2003. In so far as the possession is concerned, the subject property had already been taken as early as 18.12.2003 and handed over to the requisitioning body namely the second respondent herein. Therefore, the acquisition proceedings have not lapsed as contended by the petitioners.

11. That apart, the writ petition has been filed after a period of 13 years from the date of notification issued under Section 4(1) of the Land Acquisition Act. In this regard, it is relevant to rely upon the decision of Constitution Bench of the Hon'ble Supreme Court of India in the case of Indore Development Authority Vs. Manoharlal and others 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:

366.1. 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.

366.2. 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.

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 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 317 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.

366.4. 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.

366.5. 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 318 nondeposit 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.

366.6. 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).

366.7. 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).

366.8. 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.

366.9. 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 319 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 timebarred 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."

12. The learned counsel for the petitioners would submit that if the respondents made Revenue Deposit, without production of any records, the petitioners are entitled for compensation under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as per the dictum laid down by the Hon'ble Supreme Court of India.

13. Considering the said submission, the consequence of nondeposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to the land owners 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. Therefore, this writ petition is devoid of merits and liable to be dismissed.

14. Accordingly, this writ petition is dismissed. Consequently, connected miscellaneous petitions are closed. No order as to costs.

Sd/- Assistant Registrar(CS III) //True Copy// Sub Assistant Registrar lok To

1. The Secretary Government of Tamil Nadu Housing and Urban Development Department , Chennai - 600 009.

2. The District Revenue Officer, Land Acquisition, Outer Ring Road Project, CMDA Koyambedu, Chennai 600 092

3. The Special Tahsildar, Land Acquisition, Outer Ring Road Project Unit - IV, Chennai Metropolitan Development Authority, Egmore, Chennai - 600 008.

+2ccs to Mr.David Tyagaraj, Advocate, S.R.No.61780 +1cc to the Government Pleader, S.R.No.62596 W.P.No.10639 of 2015 GPL(CO) PM/16/12/2021