T.Thangavelu v. The Government Of Tamilnadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 17.11.2017 Delivered on : 11.12.2017
CORAM:
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN AND THE HONOURABLE MR.JUSTICE P.VELMURUGAN W.A.Nos.585 to 587 of 2016 and C.M.P.Nos.7703 to 7705 of 2016 T.Thangavelu ... appellant in W.A.No.585/2016 S.Balasundaram ... appellant in W.A.No.586/2016 K.S.Sibili Mohamed ... appellant in W.A.No.587/2016 versus 1.The State of Tamil Nadu, rep. By Secretary to Government, Housing & Urban Development Department, Fort St.George, Chennai 9 2.The Land Acquisition Officer, and special Tahsildar, Land Acquisition VII Unit II Tamil Nadu Housing Board Scheme, Arignar Anna Shopping Complex, VII Avenue, Thirumangalam, Anna Nagar, Chennai 101.
3.The Chairman, Tamil Nadu Housing Board, Nandanam, Chennai 35.
..Respondents Appeal filed against the order passed by this Court dated 28.1.2016 passed in W.P.Nos.18644, 18645, 18647/2012. Prayer in W.P.No.18644,18645,18647/2012:
Writ Petition filed under Article 226 of the constitution of India for a Writ of declaration, to declare that the Land Acquisition, Proceedings in respect of Survey Nos 87/2B3, 87/2B, 87/2B3, Alapakkam Village, Chengalpattu Taluk, Kancheepura, Town to an extent of 2.27 acres stands lapsed since the award No.1 of 2001 dated 12.10.2001 is beyond the period of limitation as prescribed in section 11-A of the Land Acquisition Act 1894.
For appellant : Mr.V.R.Kamalanathan For Respondents : Mr.V.Anandhamurthy, A.G.P.
COMMON JUDGMENT K.K.SASIDHARAN, J.
Introductory :
The intra court appeals are at the instance of the employees of Atomic Thermal Power Station, Kalpakkam, who have purchased small housing plots and the appeals are directed against the order dismissing the writ petitions filed for quashing the proceedings under the Land Acquisition Act, and negativing the claim made under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
W.A.No.585 of 2016
2. The appellant who is an employee of Atomic Thermal Power Station Kalpakkam, purchased 2520 sq.ft. of land bearing Plot No.30, Sri Govindarajalu Nagar, Alapakkam, Chengalpattu Taluk. The said plot along with the adjacent plots were required for a housing scheme floated by the Tamil Nadu Housing Board. The notification under Section 4(1) of Land Acquisition Act was issued on 17 July 1989. Subsequently, declaration under Section 6 of the Act was issued on 28 August 1990. The landowners, including the petitioner, filed writ petitions. The writ court while granting interim stay to protect possession on 17 July 1991, permitted the Land Acquisition Officer to proceed further with the acquisition proceedings. The appellant was not given notice in the award proceedings. The stay granted by the writ court was in operation in W.P.No.11689 of 1992. The appellant later filed the writ petition on the ground that award was passed beyond the period of limitation. The writ petition was dismissed on the ground of delay and laches.
W.A.No.586 of 2016
3. The appellant purchased plot no.2, admeasuring 1800 sq.ft. in Sri Govindarajulu Nagar, Alappakkam Village, by registered Doc.No.791/ 1988. The writ petition filed by the appellant and his vendor challenging the land acquisition proceedings were dismissed. Thereafter, award was passed. Since the award was passed beyond the period of limitation, the appellant filed the writ petition in W.P.No.18645 of 2012. The writ petition was dismissed on the ground of delay and laches.
WA No.587 of 2016
4. The appellant purchased Plot No.20, admeasuring 2160 sq.ft in Sri Govindarajuly Nagar, Alapakkam village by sale deed dated 3 November 1988 and registered as Doc.No.789 of 1988 on the file of Sub Registrar, Chengalpattu. The writ petition filed by the appellant and his vendor challenging the land acquisition proceedings were dismissed. Thereafter, award was passed. Since the award was passed beyond the period of limitation, the appellant filed the writ petition in W.P.No.18647 of 2012. The writ petition was dismissed on the ground of delay and laches. Counter filed by the Government :-
5. The Deputy Secretary to Government, Housing and Urban Development Department in the counter affidavit filed in the respective writ petitions, explained the statutory proceedings initiated for acquiring the land. It was contended that the writ petitions are liable to be dismissed on the ground of delay and laches. The first respondent very clearly admitted in the respective writ petitions that possession has not been taken. Submissions:-
6. The learned counsel for the appellants contended that though there is a clear admission in the counter affidavit that possession has not been taken, and a request was made to extend the benefit of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, to the appellants, the learned Single Judge dismissed the writ petitions only on the ground of delay and laches. The learned counsel submitted that the appellants are entitled to the benefits of Section 24(2) of the new Land Acquisition Act.
7. The learned Additional Government Pleader submitted that the learned Single Judge was right in dismissing the writ petitions on the ground of delay and laches.
Discussion:-
8. The appellants are all small land owners, who have purchased individual plots for construction of residential houses. The writ petitions were filed by the appellants in July 2012 on the ground that award was not passed within the period of limitation. Therefore, there was no occasion to the appellants to seek the benefit of Section 24(2) of the New Act, which came into force on 1 January 2014, in the Writ Petitions
filed in July 2012.
9. The learned Single Judge while admitting the writ petition granted interim orders restraining the respondents from taking possession in case possession has not been taken.
10. The first respondent in the respective counter affidavits clearly admitted that possession is still with the appellants. The counter affidavit filed by the Tamil Nadu Housing Board also confirmed the factual position that possession has not been taken from the appellants.
11. The order passed by the learned single Judge contain reference about the arguments advanced by the appellants on the basis of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. However, the learned Judge dismissed the writ petitions solely on the ground of delay and laches. There was no attempt made by the learned Single Judge to consider whether the appellants are entitled to the benefits of Section 24(2) of the 2013 Act.
Analysis:-
12. The core question is whether the land acquisition proceeding would hold good on account of Section 24(2) of the Land Acquisition Act, 2003, in view of the admitted case that possession has not been taken till date.
13. The Supreme Court in Delhi Development Authority vs. Sukbir Singh, 2016(6) SCC 258, followed the earlier judgment in Pune Municipal Corporation vs. Harakchand Misirmal Solanki and others, 2014(3) SCC 183, relating to the scope of Section 24(2) of the New Act and observed thus :
13. The picture that therefore emerges on a reading of Section 24(2) is that the State has no business to expropriate from a citizen his property if an award has been made and the necessary steps to complete acquisition have not been taken for a period of five years or more. These steps include the taking of physical possession of land and payment of compensation. What the legislature is in effect telling the executive is that they ought to have put their house in order and completed the acquisition proceedings within a reasonable
time after pronouncement of award. Not having done so even after a leeway of five years is given, would cross the limits of legislative tolerance, after which the whole proceeding would be deemed to have lapsed.
It is important to notice that the section gets attracted if the acquisition proceeding is not completed within five years after pronouncement of the award. This may happen either because physical possession of the land has not been taken or because compensation has not been paid, within the said period of five years. A faint submission to the effect that "or" should be read as "and" must be turned down for two reasons. The plain natural meaning of the sub-section does not lead to any absurdity for us to replace language advisedly used by the legislature. Secondly, the object of the Act, and Section 24 in particular, is that in case an award has been made for five years or more, possession ought to have been taken within this period, or else it is statutorily presumed that the balance between the citizen's right to retain his own property and the right of the State to expropriate it for a public purpose gets so disturbed as to make the acquisition proceedings lapse.
Alternatively, if compensation has not been paid within this period, it is also statutorily presumed that the aforesaid balance gets disturbed so as to free such property from acquisition.
14. In Shashi Gupta and another vs. State of Haryana and others, 2016(13) SCC 380, the State contended before the Hon'ble Supreme Court that the High Court proceedings were not in relation to the 2013 Act and it was confined to the provisions of the Land Acquisition Act, 1894 and as such, the matter should be remanded to the High Court to consider the effect of Section 24(2) of the Act. The Supreme Court while rejecting the said contention said:- 4.We are afraid, we cannot appreciate the above submission of the learned counsel for the State. On the admitted facts, the land acquisition proceedings have lapsed since there is no stay on any count operating in the matter of possession or acquisition of the lands of the appellants after 12-8-2008. The 2013 Act came into
force on 1-1-2014. Therefore, five years prior to the coming into force of the 2013 Act, the appellants have not been dispossessed. It is also a fact that there is no payment of compensation in accordance with law as declared by this Court in Pune Municipal Corpn. v. Harakchand Misirimal Solanki [Pune Municipal Corpn. v. Harakchand Misirimal Solanki, (2014) 3 SCC 183 : (2014) 2 SCC (Civ) 274] .
5. In view of the above admitted position, it is not necessary to remit the matters to the High Court. The land acquisition proceedings have lapsed in the facts of the present cases in view of the operation of Section 24(2) of the 2013 Act.
It is declared so and the appeals are allowed. No costs.
15. In P.Jayadevan vs. State, 2014(5) LW 187, the appellant challenged the order, rejecting his request for reconveyance under Section 48B of the Land Acquisition Act in the Writ Petition. When the appeal was pending, new Land Acquisition Act, 2013 came into force. The appellant therefore claimed the benefit of Section 24(2) of the new Act. The Division Bench framed an issue whether land acquisition proceedings are deemed to have lapsed taking into account the subsequent events. The Division Bench having found that the award amount was in revenue deposit issued a declaration that the land acquisition proceeding lapsed, without remitting the matter to the writ court for fresh consideration.
16. Similarly, in Tamil Nadu Housing Board vs. K.Meenakshi Achi, 2017(1) MLJ 129, notwithstanding the fact that the subject proceedings was only in relation to section 48B of the Land Acquisition Act for reconveyance, the Division Bench issued a declaration that the land acquisition proceedings lapsed under Section 24(2) of the Act on satisfying that possession has not been taken.
17. The factual position that possession is still with the appellants is clearly admitted by the respondents. In view of the admitted facts, and judicial precedents, the appellants are entitled to a declaration in terms of Section 24(2) of Central Act 30 of 2013.
18. We therefore declare that the acquisition proceedings shall be deemed to have lapsed under section 24(2) of the Right
to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
19. The intra court appeals are allowed as indicated above. No costs. Consequently, C.M.P.Nos.7241, 7432 and 11630 of 2016 are closed.
s/d- Assistant Registrar(CS-V) True Copy Sub-Assistant Registrar tar To 1.The Secretary to Government, Housing & Urban Development Department, Fort St.George, Chennai 9 2.The Land Acquisition Officer & Special Tahsildar, Land Acquisition VII Unit II T.N.H.B.Scheme, Arignar Anna Shopping Complex, VII Avenue, Thirumangalam, Anna Nagar, Chennai 101.
3.The Chairman, T.N.H.B, Nandanam, Chennai 35.
+3 Ccs to Mr.V. Anandhamurthy, Advocate sr 87968 to 87970. +3 Ccs to Mr.V.R. Kamalanathan, Advocate sr 87846 to 87848. +1 CC to Govt. Pleader sr 88551.
W.A.Nos.585 to 587 of 2016 SV(CO) SP(10/01/2018)