Muhammed Javeed Ameen Ali v. The Secretary To Government
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CAV ON:15.12.2014 DATED:19.08.2015
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN W.P.No.27141 of 2014 and M.P.Nos.1,2 of 2014 Muhammed Javeed Ameen Ali ... Petitioner Vs.
1.The Secretary to Government, Public Works Department (Highways), Fort St.George, Chennai - 600 009.
2.The Revenue Divisional Officer, Office of the Revenue Divisional Officer, Chengalpattu.
3.The Special Deputy Collector (Land Acquisition). Poonamallee, Chennai.
4.The Divisional Engineer, Highways Department, Chengalpattu, Tamil Nadu - 603 001.
5.The Chief Executive Officer, Tamil Nadu Road Development Company Limited, No.346, Sindu Pantheon Plaza, Pantheon Road, Egmore, Chennai - 600 008.
... 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 Land Acquisition Act 1894, in respect of the lands of an extent of 1600 sq.ft comprised in S.No.12/322, belonging to the petitioner pursuant to G.O.Ms.No.1222, dated 20.08.1992 situated at Sholinganallur Village at Kancheepuram District as lapsed in view of 24(2) of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013 (Act 30 2013).
For Petitioner : Mr.Sairam for M/s.Waraon For Respondents: Mr.M.S.Ramesh (Additional Government Pleader for R1 to R4) Mr.M.Sivavarthanam for R5
O R D E R
The petitioner further submits that he is the owner of the land to an extent of about 6611 sq.ft comprised in Survey No.12/1 and New Survey No.12/322. He had purchased the property in and by a Sale Deed dated 04.09.2006 from Mrs.M.Kasturi, registered as document No.5281 of 2006. The above said survey number comprised a large extent of land and M/s.Modern Builders acquired a large extent of land comprised in various survey numbers including survey No.12/322 and formed a layout in the said land. The petitioner purchased the above said land from Mrs.M.Kasthuri which was form and part of the above said layout formed by M/s.Modern Builders. He submit that the patta in respect of the property has been transferred in his name and the transfer has been entered into all the revenue records and eversince from the date of purchase. He has been in continuous possession and enjoyment of the said property.
2. The petitioner further submits that the 1st respondent issued in G.O.Ms.No.1222 P.W.(HS-2) dated 20.08.1992 under section 4(1) of the Land Acquisition Act, 1894 for acquisition of lands owned by various land owners situated in Muttukadu Village. Subsequently, the declaration under section 6 of the Land Acquisition Act, 1894, issued by the 1st respondent for the acquisition of an extent of approximately 1600 sq.ft of land from Survey No.12/322 for the purpose of widening the East Coast Road.
3. The petitioner submits that the special powers in case of urgency was invoked by the respondents for acquisition of lands while issuing the notice under section 4 of the Land Acquisition Act, 1894. The very purpose of invoking the said provision of compulsory acquisition is the urgent requirement of the land proposed to be acquired for the use of public purpose. The power of eminent domain being inherent in the Government exercisable in the public interest, general welfare and for public purpose without the owner's consent provided that assertion is on account of public exigency and for public good. Therefore, in cases where the state intends to appropriate the private property without the owner's consent by acting under the statutory provisions of compulsory acquisition the procedure authorized by law has to be mandatorily and compulsorily followed. Such power of urgency which takes away the right to file objections can only be exercised by the State Government for such public purposes of real urgency which cannot brook delay of few weeks
or few months. The Supreme Court of India categorically held in various cases that the right to file objections under section 5-A is a substantial right when a person's property is being threatened with the acquisition. Therefore such right cannot be taken away as if by a side wind. Section 5-A embodies a very just and wholesome principle that a person whose property is being or is intended to be acquired should have a proper and reasonable opportunity of persuading the authorities concerned. Sub Section (2) of Section 5-A makes it very clear that it is obligatory on the Collector to give an opportunity to the Objector for a fair and open hearing. After hearing all the objections and making further enquiries, he shall file a report to the appropriate Government containing his recommendations on the objections.
The declaration under Section 6 has to be issued only after the appropriate Government is satisfied on a consideration of the report made by the Collector under section 5-A(2). Therefore, from the above said provisions of the act, it would make clear that the intention of the legislator while enacting the provisions of the Land Acquisition Act made, complete provisions for the persons interested to file objections against the proposed land acquisition and for the disposal of such objections. In cases of real urgency, the special powers have been conferred on the appropriate authority to dispense with the provisions of Section 5-A. 4.
The petitioner submits that on an exceptional and extraordinary power taking away the enquiry under Section 5-A in a case where the possession of the land is required urgently or in an unforeseen emergency is provided under the Act, such power is not a routine power and saving circumstances warranting immediate possession it should not be lightly invoked. The guideline for exercising such exceptional power on dispensing with enquiry under Section 5-A is clearly provided under section 5-A whether the urgency is of such a nature that justifies elimination of summary enquiry under section 5-A.
In the instant case, 4(1) Notification was issued along with the dispensation of Section 5-A enquiry that prominent intention of the appropriate Government to acquire the land in an emergency as it requires immediate possession of the land proposed to be acquired. In cases where the appropriate Government exercised the power to take away the right under section 5-A it is mandatory to pay 80% of the compensation within one month from such notification and the project should be completed within two years. Such mandatory requirements had not been complied by the appropriate Government in the instant case. The actual possession of the land acquired under the notification issued in the year 1992 had not been taken till today and the land was not used for the purpose for which it was acquired.
Similarly, no compensation was paid to the land owners as on date. Therefore, the appropriate Government miserably failed to apply its mind before dispensing the enquiry under Section 5-A while issuing the notification under section 4(1) of the Act, which vitiates the entire proceedings and the land acquisition proceedings under G.O.Ms.No.1222, dated 20.08.
legs to stand and is liable to be set aside on this ground alone.
5. The petitioner further submits that the extraordinary provisions of dispensation of enquiry under section 5-A can be invoked only when the purpose of acquisition cannot be delayed and the authority concerned must be fully satisfied that a time of few weeks or months likely to be taken in conducting enquiry under Section 5-A in all probability, frustrate the public purpose for which land is proposed to be acquired. The satisfaction of the Government on the issue of urgency is subjective but a condition precedent to the exercise of power under section 17(1) and exercise of such power is vitiated due to malafide or that the authorities concerned did not apply their mind to the relevant factors and cases where there is an enormous delay in utilizing the land acquired for the purpose for which it was acquired.
In the instant case as of now the land acquired were not utilized for the purpose for which it was acquired in the year of 1992. Therefore, the dispensation of Section 5-A by invoking the special and extraordinary powers is vitiated and eliminates the entire object of the acquisition proceedings and the acquisition is illegal and has to be set aside on this ground. He submits that he has purchased the above property in the year of 1985 and he has been continuously in possession of the said property. However, he came to know about the acquisition proceedings and enquired about the same with the respondents on various occasions in person and by way of correspondence through letters. However, the respondents failed to provide the informations and kept him in the dark with reference to the acquisition proceedings.
He has not received any notice of acquisition and the appropriate Government failed to pay the compensation as contemplated under the provisions of the Land acquisition Act, 1894. While this is so, the respondents continuously giving threat that they will take possession of his property without giving any opportunity to place his objections stating that in the year 1993 itself the land in question had been acquired and the entire proceedings were completed. It is in fact, the respondents have failed to serve any notice and the award passed in the matter of land acquisition as per the above Government Orders.
6. The petitioner further submits that the earlier notification issued by the Government in the year of 1992 by invoking the Special Power of urgency and dispensation of Section 5 of the Act is unsustainable for the simple reason that though the 1st respondent invoked the power of urgency and issued notice under the Land Acquisition Act, 1894, the respondents have failed to take possession of the land acquired under the said proceedings by paying the compensation to the owners till date. Similarly, the lands acquired by the respondents as per the Government Order issued in the year of 1993 had not been utilised for the purpose for which it was acquired so far. In fact the preliminary notification under section 4(1) was issued by invoking the urgency dispensation Section 5 of the Act 1894 for the purpose of widening the East Coast Road. However, the respondents miserably failed to complete the proceedings by taking
the actual physical possession and depositing the compensation before this Court. He submits that the Central Government had enacted the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 and the same came into effect from 01.01.2014. He submits that as per Section 24(2) of the said Act, the entire Land Acquisition proceedings initiated under the Land Acquisition Act, 1894 is said to have been lapsed. As a matter of fact he understands that the award under section 11 of the Act, passed in the year 1995 more than 18 years before the commencement to the land owners nor the amount was deposited in the Court by the Special Land Acquisition Officer. Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013.
7. The petitioner further submits that Section 24(2) clearly emphasis that in case of Land Acquisition Proceedings initiated under the Land Acquisition Act 1894, where award under section 22 has been made five years or more prior to the commencement of this Act, but the physical possession of the land has not been taken or compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government if it so chooses to acquire the land shall initiate proceedings of such land acquisition afresh in accordance with the provisions of this Act and therefore in any case, the land acquisition proceedings initiated by the respondents in the year of 1993, shall be deemed to have lapsed, in view of the fact that the award has been passed in the year of 1995 more than 18 years before the commencement of the new act and the compensation was not paid to the land owners so far. Therefore, the land acquisition proceedings initiated by the respondents under G.O.Ms.No.1222, dated 20.08.1992 has to be declared as invalid and liable to be set aside.
8. The petitioner submits that the Right to Fair Compensation Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 introduced in an entirely new concept for compulsory acquisition of land and provides new scheme for compensation Rehabilitation and Resettlement with the affected families whose land has been acquired or proposed to be acquired or affected by such acquisition. Therefore, the instant case has to be reviewed in the light of the provisions contained in the new act and the entire scheme should be resettled as per the conditions embodied in Section 24(2) of the Act.
The Proviso to Section 24(2) deals that the situation whether in respect of the acquisition initiated under 1894 Act and award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of beneficiaries than all the beneficiaries specified in Section 24 Notification become entitled to compensation under the 2013 Act.
provisions of the 2013 Act. It is a well settled principle that as per the clause 31 of the Land Acquisition Act, 1894, the compensation should be deposited in the Court, the provisions under the Act requires that the Collector should tender the payment of compensation to the persons interested who are entitled to compensation and if the compensation has not been paid due to the reasons as contemplated in Section 31(2) the Collector should deposit the amount of compensation in the Court to which references can be made under section 18. In the instant case, the above said proceedings are vitiated and has to be quashed. Therefore, the notification issued under section 4(1) under the G.O.Ms.No.1222, dated 20.08.1992 is null and void and liable to be quashed.
9. The respondent further submits that the Government decided for "Strengthening and Widening of the East Coast Road from Thiruvanmiyur to Cuddalore (S.A.Dist). As part of it an extent of 4.82.0 hectares lands in Sholinganallore Village, formerly Saidapet Taluk formerly Chengalpattu MGR District. It is submitted that the draft notification under section 4 (i) of Land Acquisition Act (Central Act I of 1894) for an extent of 4.82.0 hectares of dry lands was approved in G.O.Ms.No.1222 (Public Work HS-2) Department, dated 20.08.1992.
It was published as detailed below:
1. Tamil Nadu Government Gazette :07.09.1992
2. Tamil Nadu News papers Makkalkural :09.09.1992
3. Tamil Nadu News paper Vettrimalai :09.09.1992
4. In the locality :25.091992 It is submitted that the draft declaration under section 6 of the Land Acquisition Act (Central Act 1 of 1894) for the above extent of 4.82.0 Hectares in G.O.Ms.No.1356/PW(HS-2) Department, dated 21.09.1993 and published in the Tamil Nadu Gazette, dated 21.09.1993. It was published as detailed below:
1.Tamil Nadu Government Gazette :21.09.1993 2.Tamil Nadu News papers Kumarimurasu :23.09.1993 3.Tamil Nadu News papers Makkalkural :23.09.1993 4.In the locality :23.03.1993
10. The draft direction under section 7 of the Land Acquisition Act 1894 was approved by the Government in their letter No.108922/(HS-2)/93-1 Public Works (Highways) Department, dated 19.01.1994 and published on 09.02.1994. In the mean time the Government have referred to revise the existing alignment in G.O.Ms.No.1292/PW(HS-2), dated 29.12.1994. The requisitioning body, the Divisional Engineer, East Coast Road, Mamallapuram has not revised the alignment. He has neither changed the existing alignment for prepared the revised alignment. The notification published along
has been lapsed on 22.09.1995. The Revenue Divisional Officer in his letter No.RC.No.18/90B, dated 05.03.2000 to the District Collector, Kancheepuram has reported that the Government in their order in G.O.Ms.No.1292/PW(HS-2), dated 29.12.1994 has ordered realignment of road from 13/300km to 22/600km in Old Mahabalipuram with diversion from Sholinganallore to Kudimiyandi Thoppu Road, cancelling acquisition of lands in New Mahablipuram road from 11/800km to 22/200 km. Moreover, the entire land acquisition proceedings have lapsed as early as on 22.09.1995 since no award has been passed in the Sholinganallore Village so far. In respectful submission to this Court, the petitioner claims that an award was passed under section 11 in the year of 1995 and no compensation is paid to him.
In this regard it is respectfully submitted to this Court that no such award as referred by the petitioner is passed and the Draft Notification Under Section 4 issued by the Government of Tamil Nadu has lapsed and all the award proceedings initiated in the year 1992 has also lapsed. A fresh LPS proposal with realignment and it is under process in the Office of the Land Acquisition Officer i.e., Special Deputy Collector, IT Expressway Limited, Tambaram for initiating the land acquisition proceedings.
11. The highly competent counsel Mr.Sairam, appearing for the petitioner submits that he is the owner of the land to an extent of about Survey No.12/1 and New Survey No.12/322. He had purchased the property in and by a Sale Deed dated 04.09.2006. The patta and other Revenue Records have been mentioned in the name of the petitioner and he is sole possession and in enjoyment of the same. The 1st respondent had issued a Government Order dated 20.08.1992 for acquiring the petitioner's land for the purpose of widening the East Court Road. The respondent had acquired the said land under urgent requirement without the consent of the owner of the land. The learned counsel further submits that the respondents dispenses with the 5A enquiry.
Further, the Government exercised the power to take away the right under section 5A which is mandatory to pay 80% of the compensation within one month from such notification and the project should be completed within two years. Such mandatory requirements had not been complied by the respondents in the instant case. Further, the physical position of the land acquired under the notification issued in the year 1992 had not been taken as of now and the land was not used for the said purpose besides no compensation was paid to the land owner till now, as such the land acquisition proceedings as per the Government Order is vitiated.
12. The very competent counsel further submits that the petitioner has been in possession from the date of purchase. The petitioner had not received any compensation or not in receipt of any notice. Hence, the very competent counsel entreats the Court to grant relief under section 24(2) of the New Act, which is squarely applicable in the present case considering the current position.
13. The very competent counsel Mr.M.S.Ramesh, appearing for the
respondents 1,4 and 5 submit that the 1st respondent had issued a Government Order for acquiring the petitioner's land and the lands of others for formation of widening the road. Hence, the Special Tahsildar had acquired the said land under the Old Act, after invoking the urgency class. After acquiring the said land, the same had been handed over to the 5th respondent who formed the widening of the road and is maintained by them. Therefore, the possession has not been vested with the petitioner. Now, the road is renamed as East Coast Road.
14. The very competent counsel Mr.B.Vivekavanan, appearing for the 2nd and 3rd respondents submits that the petitioner had purchased the subject matter of lands in the year of 1985, but the petitioner has become the owner of the property in the year 2004 but the acquisition proceedings had been initiated in the year of 1992 and the same had been served and who also participated in the award enquiry. The compensation amount paid to the erstwhile owner, further the acquired land had been utilized for widening the road and as such the respondents are maintaining the said road and the same is being used by the public. Therefore, the petitioner's prayer is not maintainable under the New Act.
15. Considering the facts and circumstances of the case and arguments advanced by the highly competent counsel on all sides and on perusing the typed set of papers, this Court is of the view that the subject land had been utilized for widening the East Coast Road from two lanes to four lanes. As such the acquired land is under the control and maintenance by the respondents. Hence, the petitioner is not entitled to receive relief under the New Act, therefore, the above writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
Sd/- Asst.Registrar (CS V ) /true copy/ Sub Asst. Registrar ub To 1.The Secretary to Government, Public Works Department (Highways), Fort St.George, Chennai - 600 009.
2.The Revenue Divisional Officer, Office of the Revenue Divisional Officer, Chengalpattu.
3.The Special Deputy Collector (Land Acquisition). Poonamallee, Chennai.
4.The Divisional Engineer, Highways Department, Chengalpattu, Tamil Nadu - 603 001.
5.The Chief Executive Officer, Tamil Nadu Road Development Company Limited, No.346, Sindu Pantheon Plaza, Pantheon Road, Egmore, Chennai - 600 008.
+1 cc to M/s.Waraon & Sairams, Advocates, sr.44512 W.P.No.27141 of 2014 and M.P.Nos.1,2 of 2014 ala co kra 22/09