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Madras High CourtWP/7026/2015dismissed

M.Anjappa, v. State,

2022-06-13Honourable Mr Justice M.Dhandapani14 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 13.06.2022

CORAM

THE HONOURABLE MR. JUSTICE M.DHANDAPANI W.P. Nos.7026 and 7027 of 2015 and M.P.No.1 of 2015 M.Anjappa .. Petitioner in W.P.No.7026 of 2015 Anjappan ..Petitioner in W.P.No.7027 of 2015 Vs.

1. The Secretary to Government, Housing and Urban Development Department, Fort St. George, Chennai-9.

2. The Tamil Nadu Housing Board Rep. by its Managing Director, No.33 Anna Salai, Nandanam, Chennai-35.

3. The Executive Engineer, Tamil Nadu Housing Board, Bhagalur Road, Hosur-635109.

4. The Special Tahsildar (L.A.) Hosur Housing Scheme, Bhagalur Road, Hosur, Krishnagiri District.

.. Respondents in both the petitions

Prayer in W.P.no.7026 of 2015: Petition filed under Article 226 of the Constitution of India, for issuance of Writs of Declaration declaring that the Land Acquisition Proceedings initiated under the Land Acquisition Act 1894 in respect of lands measuring an extent of 0.67.0 hectares comprised in Survey No.892/2 of Hosur Village and Taluk Krishnagiri District covered by Notification issued under Section 4(1) of Land Acquisition Act 1894 vide G.O.Ms.No.299 Housing and Urban Development Department dated 04.03.1991 and Declaration under Section 6 of Land Acquisition Act 1894 vide G.O.Ms.No.414 Housing and Urban Development Department dated 03.07.1992 deemed to have lapsed in view of Section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Re-Settlement Act 2013.

Prayer in W.P.No.7027 of 2015: Petition filed under Article 226 of the Constitution of India, for issuance of Writs of Declaration declaring that the Land Acquisition Proceedings initiated under the Land Acquisition Act 1894 in respect of lands measuring an extent of 0.16.0 hectares comprised in Survey No.891/1 and 0.43.5 hectares in Survey No.897/3A1 of Hosur Village and Taluk Krishnagiri District covered by Notification issued under Section 4(1) of Land Acquisition Act 1894 vide G.O.Ms.No.850 Housing and Urban Development Department dt. 21.05.1991 and Declaration under Section 6 of Land Acquisition Act 1894 vide G.O.Ms.No.528 Housing and Urban Development Department dt. 12.08.

1992 deemed to have lapsed in view of Section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Re-Settlement Act 2013.

For Petitioner : Mr.R.Bharath Kumar (In both the petitions) For Respondents : Mr. P.Sathish, AGP RR1 & 4 Mr.D.Murugan, Standing Counsel RR2 & 3 (In both the petitions) COMMON ORDER W.P.No.7026 of 2015 has been filed for declaring that the Land Acquisition Proceedings initiated under the Land Acquisition Act 1894 in respect of lands measuring an extent of 0.67.0 hectares comprised in Survey No.892/2 of Hosur Village and Taluk Krishnagiri District covered by Notification issued under Section 4(1) of Land Acquisition Act 1894 vide G.O.Ms.No.299 Housing and Urban Development Department dated 04.03.1991 and Declaration under Section 6 of Land Acquisition Act 1894 vide G.O.Ms.No.414 Housing and Urban Development Department dated 03.07.1992 deemed to have lapsed in view of Section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Re-Settlement Act 2013.

2. W.P.No.7027 of 2015 has been filed for declaring that the Land Acquisition Proceedings initiated under the Land Acquisition Act 1894 in respect of lands measuring an extent of 0.16.0 hectares comprised in Survey No.891/1 and 0.43.5 hectares in Survey No.897/3A1 of Hosur Village and Taluk Krishnagiri District covered by Notification issued under Section 4(1) of Land Acquisition Act 1894 vide G.O.Ms.No.850 Housing and Urban Development Department dt. 21.05.1991 and Declaration under Section 6 of Land Acquisition Act 1894 vide G.O.Ms.No.528 Housing and Urban Development Department dt. 12.08. 1992 deemed to have lapsed in view of Section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Re-Settlement Act 2013.

3. Heard, the learned counsel for the petitioners, the learned Additional Government Pleader appearing for the respondents.

4. The petitioners are the owner of the subject property situated at Hosur Village and Taluk, Krishnagiri District. The first respondent had

issued a notification under Section 4(1) of the Land Acquisition Act 1894 for acquiring lands for Tamil Nadu Housing Board Scheme. After publication of Section 4(1) notification in news paper, an enquiry under Section 5(A) was conducted. On completion of the enquiry, the declaration under section 6 of the said Act was approved by the government in G.O.Ms.No.528, Housing and Urban Development Department, dated 12.08.1992 and on the same day it was published in the government gazette. The Special Tahsildar, Land Acquisition Housing scheme has passed an award No.17/1994 on 12.08.1994 determining the market value of the acquired land and fixed the compensation.

5. Since the said amount of compensation was very low, based on the objection made by the petitioners, the 4th respondent made reference under Section 18 and the same was numbered as LAOP. No.02/2012 before the Sub Judge, Hosur. The learned Sub Judge had also enhanced the compensation. However, till date, the respondents have not paid any compensation to the petitioners.

6. According to the petitioner, admittedly, the respondents have not taken any steps to implement the project. Till date, the possession of the subject land has not been taken and the same still remains with the petitioners and no compensation amount has been paid to the petitioner. Therefore, the land acquisition proceedings initiated under the Central Act 1894 have been lapsed in view of the non compliance of Section 24(2) of Right to Fair Compensation and Transparancy in Land Acquisition and Resettlement Act 2013. Therefore, the petitioners made a representation to the respondents to drop the acquisition proceedings. Till date, no action was taken, hence, the present writ petition has been filed before this Court seeking appropriate remedy.

However, it is the stand of the respondents that possession has been taken and handed over to the requisitioning body and in view of the decision of the Hon'ble Supreme Court in Indore Development Authority Vs. Manoharlal and ors etc., (2020 SCC Online SC 316), the acquisition proceedings have not lapsed and this petition deserves to be dismissed.

7. A careful perusal of the contention reveal that possession has been taken by the Government. Though it is reiterated by the petitioners, however, no material whatsoever has been placed to substantiate the same. In such circumstances, the decision of the Hon'ble Supreme Court in the case of Indore Development Authority Vs. Manoharlal and ors etc., is squarely applicable to the case on hand.

8. For better appreciation, the relevant portion of the decision in the case of Indore Development Authority Vs. Manoharlal and ors etc., (2020 SCC Online SC 316), is quoted hereunder:- ''374. Before proceeding further, in our opinion, Section 24 contemplates pending proceedings and not the concluded ones in which possession has been taken, and compensation has been paid or deposited. Section 24 does not provide an arm or tool to question the legality of proceedings, which have been undertaken under the Act of 1894 and stood concluded before five years or more. It is only in cases where possession has not been taken, nor compensation is paid, that there is a lapse. In case possession has been taken, and compensation has not

been deposited with respect to majority of landholdings, the beneficial provision of the statute provides that all beneficiaries shall be paid compensation as admissible under the Act of 2013. The beneficiaries, i.e., landowners contemplated under the proviso to Section 24(2), are the ones who were so recorded as beneficiaries as on the date of issuance of notification under Section 4 of the Act of 1894. 227 (2006) 3 SCC 286 The provision is not meant to be invoked on the basis of void transactions, and by the persons who have purchased on the basis of power of attorney or otherwise, they cannot claim the benefit under Section 24 as is apparent from proviso to Section 24 (2) and the decision in Shiv Kumar & Ors. v. Union of India and Ors.''

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402. 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 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 nondeposit 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 nondeposit 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 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 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."

9. From the above, it is evident that the Hon'ble Supreme Court has settled all the issues, 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 requisitioning body. Further the requisitioning 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 Act, i.e., the physical possession of the land was not taken 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, the issues raised by the petitioners having been settled, the acquisition proceedings

have not lapsed by operation of law under Section 24 (2) of the new Act i.e., Right 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 is liable to be dismissed.

10. Accordingly, these writ petitions are dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petition is also closed.

13.06.2022 Index : Yes/No Internet : Yes/No Rli To

1. The Secretary to Government, Housing and Urban Development Department, Fort St. George, Chennai-9.

2. The Tamil Nadu Housing Board Rep. by its Managing Director, No.33 Anna Salai, Nandanam, Chennai-35.

3. The Executive Engineer, Tamil Nadu Housing Board, Bhagalur Road, Hosur-635109.

M.DHANDAPANI, J.

rli

4. The Special Tahsildar (L.A.) Hosur Housing Scheme, Bhagalur Road, Hosur, Krishnagiri District.

W.P. Nos.7026 and 7027 of 2015 13.06.2022