Dr.T.G.Balachander, 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.27189 of 2014 and M.P.Nos.1,2 of 2014 Dr.T.G.Balachander ... 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 1734 Sq.Ft., comprised in S.No.87/1-A, belonging of the petitioner pursuant to G.O.Ms.No.951, dated 09.07.1992 situated at Kanathur Reddy Kuppam 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 26.5 Cents, comprised in Survey No.87/1A. He has purchased the property in and by a Sale Deed dated 12.08.1991 from Mrs.Jalajamani, registered as document No.1501 of 1991. He submits 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.951 dated 09.07.1992 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, the acquisition of an extent of 1734sq.ft of land from Survey No.87/1A, 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 purposes. 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 an 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 compulsory 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.

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 satisfying 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 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.961, dated 09.07.1992 and the subsequent declaration under section 6 of the Act are null and void and have no 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 purposes of acquisition cannot be delayed and the authority concerned must be fully satisfied that 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 said to have been lapsed.

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.951, dated 19.10.1992 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. Therefore, in any case even if the appropriate Government chooses to acquire the land which was the subject matter of the acquisition under the 1894 Act in view of the said lapses it has to initiate proceedings afresh under the 2013 Act and the land owners are entitled to get their compensation as per the provisions of the 2013 Act.

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.951, dated 09.07.1992 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) and consequently an extent of 3.86.0 hectares or 09.61 acres dry lands in 35 Kanathur Reddy Kuppam Village, Thiruporur Taluk, Kancheepuram District. It is submitted that the draft notification under section 4 (i) read with the Section 17(3) urgency Clause of the Land Acquisition Act (Central Act 1 of 1894) in G.O.Ms.No.961(P.W/(HS.2) Department, dated 09.07.1992 and published notification II(2) PWH 3313(-2)/92. 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 lands was approved in G.O.Ms.No.274/PW(HS-2) Department, dated 22.02.1993 and published in part II Section 2 issue No.

25A in the extraordinary issue of the Tamil Nadu Government Gazette dated 30.06.1993. The Special Tahsildar (LA) unit II East Coast Road Project, Big Melamaiyur, Chengalpattu has been authorized to perform the function of the Collector under provision of urgency clause under sub section (i) of section 17 of the Land Acquisition Act, 1894. The lands notified for acquisition has been duly demarcated, surveyed, measured and mapped Under section 8 of the Act. The area shown in this award is true and correct area of the land. The notice under section 9(i) and 10 of the Land Acquisition Act 1894 was also published in the locality on 20.02.1995. The individual notices under section 9(3) and 10 of the Act were also issued to the land owners on 20.02.1995 calling for them to attend Award Enquiry on 16.03.1995, 17.03.1995 and finally on 24.03.

1995. The value of land was fixed at Rs.700/- per cent equivalent to Rs.1729/- per are based on the sale in S.No.37/4A, DOC.No.2408/91, dated 23.12.1991 registered at Sub Registrar Office, Tiruporur and approved by the District Revenue Officer, Kancheepuram in his RC.51541/92F3, dated 27.12.1994. The acquired lands were taken over and possession was handed over to the Highways authority on 10.11.1995. The East Coast Road has been formed already and it is now being maintained by the Tamil Nadu Road Development Company Limited. The land comprised in S.No.87/1A of Kanathur Reddy Kuppam Village has been sub-divided as follows in the award. According to the requirement of the land it was acquired for East Coast Road widening for four lanes from two lands.

Sl.

No No.of Patta and name of the Pattadarar Survey No Extent Acquire d In Acres Compensation Amount (in Rs) PattaNo.496,Thiru.A.Shanmu gam, S/o.Thiru.Annasamy 87/1A1B 0.04.0 0.10 15,146.00

In response to the notice issued Under Section 9(3) and 10 of the Land Acquisition Act, neither the land owner nor his representatives had appeared for the award enquiry. Since the land owner did not appear for the enquiry, the Land Acquisition Officer had no details apart from the personal details of the land owner. Hence, the compensation amount is ordered to kept in revenue deposit and it can be claimed by the Original Land owner by submitting relevant documents to the RDO, Chengalpattu, since he is the competent authority to pay the compensation based on the records available with him.

10. It is respectfully submitted that the averments made by the petitioner in Para 2 and 3 are denied. According to the statement of the petitioner, he has purchased the land during the month of August, 1991 but has not obtained patta in his name and made the necessary changes in the village records. The award details reveals that Thiru.A.Shanmugam, S/o.Annasamy, as the Original Land Owner and he has not appeared for the award enquiry. All the procedures of Land Acquisition Act 1894 were followed in the village and the lands were acquired and the changes were carried out in the Village Accounts. Since, the petitioner claims to be the landowner, ought to have attended the award enquiry and made his claims to be the landowner, ought to have attended the award enquiry and made his claims before the Land Acquisition Officer.

The lands were acquired and possession was handed over to the Highways authority on 31.03.1995. Hence, the averments made by the petitioner in Para 2 and 3 are denied. It is respectfully submitted that the averments made by the petitioner in para 4,5,6,7,8,9,10,11,12 and 13 are denied. All the procedures prescribed under the Land Acquisition Act of 1894 was followed and the lands in the village are acquired as per the procedure. All the landowners of the village were given ample opportunity to represent their cause with relevant documents to the Land Acquisition Officer before the award was passed. Certain landowners have also made their presence and requested for Higher Compensation. But, their request could not be considered by the Land Acquisition Officer since the landowners have not submitted any valid supporting documents.

The land acquisition proceedings were initiated in the year 1992 and completed on 30.03.1995. The land acquisition proceedings under 4 (i),6,7,8,9)(i),9(3) and 10 are followed and the award was passed Under Section 11, on 30.03.1995 and the possession was taken by Land Acquisition Officer. Subsequently, necessary ownership of land changes were carried out in Village Accounts as "Kizhakku Kadar Karai Salai". The petitioner in his claim refers that no compensation is made in his name in this Court, whereas according to the Award No.06/95, dated 30.03.1995, the petitioner is not the original landowner. Eventhough, he claims that he has purchased the land in August, 1991 the village records reveals that Thiru.A.Shanmugam, was the landowner.

landowner he has recommended to deposit the compensation in the Revenue Deposit.

11. The property referred by the petitioner was already taken over by the Government on 31.03.1995 and it was encroached by the petitioner which was removed from enchroachment on 28.02.2014. The Village records shows the S.No.87/1A1B as "ECR or Kizhakku Kadar Karai Salai" and the lands are under Highways Possession. The Tamil Nadu Road Development Company Limited has already undertaken the work of widening of the East Coast Road from two lanes to four lanes. In this juncture the petitioner seeks for the compensation under section 24 of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013, which is not valid before law. Hence, all the averments made by the petitioner in Para's 4,5,6,7,8,9 and 10 are denied as the details are false and frivolous.

12. The highly competent counsel Mr.Sairam, appearing for the petitioner submits that he is the owner of the land to an extent of 1734 Sq.Ft., comprised in S.No.87/1-A, belonging of the petitioner pursuant to G.O.Ms.No.952, dated 09.07.1992. 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 09.07.1992 for acquiring the petitioner's land for the purpose of widening the East Coast 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.

13. 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.

14. 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.

15. 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.

16. 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 petition is 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, Advocate, sr.44517 W.P.No.27189 of 2014 and M.P.Nos.1,2 of 2014 ala co kra 22/09