Madras High CourtWP(MD)/20395/2017dismissed

R.Subramani v. The Secretary To The Govt.

2018-02-07Honourable Mr Justice V. Bharathidasan11 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07.02.2018

CORAM:

THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN W.P.(MD)Nos.20395 and 23939 of 2017 and W.M.P.(MD)Nos.16663 and 20090 of 2017 1.R.Subramani 2.R.Parameshwaran 3.Ochayee 4.R.Petchi 5.S.Panchu 6.M.Amaravathi 7.A.Kasthuri 8.R.Sivanammal ... Petitioners in both W.Ps.

-Vs1. The Secretary to the Government of Tamil Nadu, Housing and Urban Development Department, Fort St.George, Secretariat, Chennai-600 009.

2. The Managing Director, Tamil Nadu Housing Board (TNHB), Nanthanam, Anna Salai, Chennai-600 035.

3. The Executive Engineer / AO, Uchapatti-Thoppur Satellite Town Division, Tamil Nadu Housing Board (TNHB), Ellis Nagar, Madurai-625 016.

4. The District Collector, Madurai District, Madurai-625 020.

5. The Revenue Divisional Officer, O/o.Revenue Divisional Office Madurai Revenue Division, Madurai-20.

6. The Special Tahsildar, (Land Acqusition) South Neighbourhood Scheme, Old Ramnad Collectorate complex, Madurai-625 020.

... Respondents in both W.Ps.

Writ Petitions filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Declaration, declaring the entire land acquisition proceedings initiated under the Land Acquisition Act, 1894 in respect of land in survey numbers 22/8A, 22/7, 22/4B and 26/1A respectively, to the extent of 0.26.0,

0.41.5, 0.32.5 and 0.53.0 hectares of land respectively in Award Nos.8/1994 and 7/1994 with ROC Nos.153/86/A and 157/86/A, LAC Nos.21/86 and 25/86 respectively dated 05.08.1994 of Thoppur Village, Madurai South Taluk, Madurai District, which was passed by the 6th respondent / Special Tahsildar (Land Acquisition), South Neighbourhood Scheme, Madurai-20 as lapsed, in view of the Sec.24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and consequently directing the respondents to release these survey numbers from the patta in which they have been transferred to Tamil Nadu Housing Board and not to interfere with the physical possession over the said property as still they are in possession and cultivation.

For Petitioners : Mr.C.Masilamani For R1, R4 to R6 : Mrs.J.Padmavathy Devi, Special Government Pleader.

In W.P.(MD)No.20395 of 2017 For R1, R4 to R6 : Mr.B.Pugalendhi, Additional Advocate General, assisted by Mrs.J.Padmavathy Devi, Special Government Pleader.

In W.P.(MD)No.23939 of 2017 For R2 and R3 : Mr.B.Pugalendhi, Additional Advocate General, assisted by Mr.R.Janarthanam both writ petitions.

COMMON ORDER These writ petitions have been filed seeking to declare the entire land acquisition proceedings initiated by the sixth respondent / Special Tahsildar (Land Acquisition), Madurai, South Neighbourhood Scheme, as lapsed. Since the issue arises in all the writ petitions is one and the same, these writ petitions are disposed of by way of passing a common order. 2.The case of the petitioners, in brief, is as follows:- The petitioners are the owners of the land in Survey Nos. 22/8A, 22/7, 22/4B and 26/1A, to the extent of 0.26.0, 0.41.5, 0.32.5, 0.53.0 hectares respectively in Thoppur Village, Madurai South Taluk, Madurai District. Earlier, a land acquisition proceedings was initiated by the respondents, for the Madurai South Neighbourhood Scheme of Tamil Nadu Housing Board.

After issuing a declaration under Section 6 of the the Land Acquisition Act, 1894 (herein after referred as "old Act") awards have also been passed on 05.08.1994 in Award Nos.7 and 8 of 1994. Even though awards have been passed on 05.08.1994, the possession of the lands was not taken from the petitioners.

have made representations to the authorities to exempt their lands from the acquisition proceedings, but so far, no order has been passed. However, the petitioners and others are doing agricultural operations in the above property till date and they are in physical possession of the same. Earlier, the petitioners have filed a writ petition in W.P.(MD)No.993 of 2013, seeking for reconveyance of the lands. The said writ petition was dismissed on 18.04.2013, subsequently, they have filed the present writ petitions seeking relief under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter after called as "New Act") . 3.

According to the petitioners, as per Section 24(2) of the new Act, if award is made five years or more, prior to the commencement of the new 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 shall initiate the proceedings for acquisition afresh in accordance with the provisions of the New Act. According to the petitioners, even though awards have been passed as early in the year 1994, the physical possession of the lands so far not taken from the petitioners, and still they are continuing agriculture operations in the said lands, and there is a well in the said survey numbers, for which, they have also got electricity service connection, and till date they are using the same.

In the mean time, they have made representations to the fifth respondent / Revenue Divisional Officer, Madurai, not to disturb their agricultural activities. In turn, the fifth respondent has sent a letter to the third respondent stating that the petitioners may be permitted to continue their cultivating operations on either side of road laid by the Tamil Nadu Housing Board, and the land owners are directed not to disturb the other proceedings initiated by the Tamil Nadu Housing Board. All these proceedings clearly establish that the petitioners are in physical possession of the property and possession so far not taken from them. Apart from that, award amount was also not paid to the petitioners till date.

In the above circumstances, the land acquisition proceedings deemed to have been lapsed and the petitioners are entitled to invoke Section 24(2) of the New Act. Hence, the present writ petitions have been filed. 4.The third respondent/Executive Engineer, Tamil Nadu Housing Board, Ellis Nagar, Madurai, filed a counter affidavit stating that a notification was issued under Section 4(1) of the Land Acquisition Act, 1894 (old Act) vide G.O.(Ms)No.983, Housing & Urban Development Department dated 14.06.1991, and the 4(1) notification was published in local dailies on 20.07.1991, and draft declaration under Section 6 of the Act has been approved by the Government vide G.O.(Ms)No.499, Housing & Urban Development Department dated 03.08.1992 and declaration under Section 6 of the Old Act has been published on 07.08.1992.

Thereafter, after enquiry, the awards have been passed on 05.08.1994.

deposited before the Civil Court on 06.05.1995 as per Sections 30 & 31 of the Land Acquisition Act, 1894, in L.A.O.P.No.76 of 1995 on the file of the Sub Court, Madurai. Thereafter, physical possession of the property has been taken by the revenue authorities and the same was handed over to the Tamil Nadu Housing Board on 23.03.1995. Subsequently, patta was also transferred in the name of the Tamil Nadu Housing Board vide patta number 1250 of Thoppur Village. Now, after taking possession of the land, the land is utilised for formation of a Satellite Town Scheme, as declared by the State Government, and the State Government has also sanctioned a sum of Rs.120 Crores for the said Satellite Town Scheme Project vide G.O. (Ms)No.260, Housing & Urban Development Department, dated 21.10.2013.

Now, formation of roads, drainage, water supply and other basic infrastructures are under progress. The Tamil Nadu Housing Board has also prepared a Satellite Town layout measuring to an extent of 573.83 Acres inclusive of the petitioners' lands. The Board has approved a sum of Rs.218 Crores for the scheme including the land and development cost. The Local Planning Authority, Madurai has also approved the layout vide LPA.No.9/2016 dated 17.02.2016 and the development work has been divided and given to two group of contractors. The lands have been handed over to the contractors on 06.01.2016 and 09.01.2016. In the above layout, totally 9557 plots have been earmarked to the various higher and lower income groups.

Out of 9,557 plots, 4,449 plots are proposed to be allotted to the Tamil Nadu Slum Clearance Board for allotting the same to the economically poor people and the above plots will be utilised by the Tamil Nadu Slum Clearance Board and the encroachers, who are living in the heart of the city will be shifted to those houses. Moreover, formation of a 120 feet wide straight road from N.H.7, provided for the Satellite Town Scheme is also under process. At this stage, now the petitioners have come up with the writ petitions, claiming that they are in physical possession of the properties in dispute and possession has not been taken by the authority and the award amount has not been disbursed, which are factually not correct. 5.

The learned counsel appearing for the petitioner submitted that even though award has been passed in the year 1995, so far, the award amount has not been deposited in the name of the petitioners. Even though in the counter affidavit it is stated that award amount has already been deposited under Sections 30 and 31 of the old Act, so far, the petitioners have not received any notice from the concerned Court. In the above circumstances, it cannot be held that the award amount has been paid to the petitioner. So far as taking the physical possession of the lands is concerned, even though the respondents have made claim that possession has been taken by the authorities and handed over to the Housing Board, but still the petitioners and others are cultivating the lands and a specific order has also been passed by the third respondent on 24.01.

2017 permitting the petitioners to cultivate the lands and service connection is also provided to the petitioners' lands, and so far, the respondents did not take physical possession of the properties from the petitioners.

6.In support of his contention, the learned counsel appearing for the petitioners mainly relied upon the judgment of the Hon'ble Supreme Court in Banda Development Authority Vs. Mothilal AGarwal reported in [(2011) 5 SCC 394] and Pune Municipal Corporation and another V. Harakchand Minirimal Solanki and others [(2014) 3 SCC 183] and the Division Bench of this Court in the case of TNHB Vs. iGate Global Solution Limited reported in (2016) 2 CTC 241, and contended that as per the ratio laid down by the Hon'ble Supreme Court and this Court, the authorities must establish by producing some evidence, i.e., either preparation of Panchnama in the presence of witnesses or some other documents to show that the physical possession has been taken from the petitioners.

Mere transfer of the ownership to the Housing Board in the absence of any proof for taking possession, is not sufficient to establish that physical possession was taken from the petitioners. 7.Per contra, the learned Additional Advocate General appearing for the respondents 2 and 3 produced the records and submitted that after passing the award, since there is a dispute regarding ownership of the land a sum of Rs.1,57,406/- has been deposited in LAOP.No.75 of 1995 on the file of the Principal Sub Court, Madurai under Sections 30 and 31 of the old Act and some of the land owners had already withdrawn the amount, but, so far, the petitioners did not approach the Court for withdrawing the amount, it is only the petitioners, failed to withdraw the award amount.

The learned Additional Advocate General further submitted that so far as taking possession of the property is concerned, after passing the award and depositing the award amount, the revenue authorities have taken physical possession of the land. Thereafter, possession has been handed over on 23.03.1994 by the Sub Inspector of Survey (Land Acquisition), in the office of the Special Tahsildar, (Land Acquisition) South Neighbourhood Scheme, Unit II, Madurai to the Head Surveyor/Surveyor of the office of the Executive Engineer and Administrative Officer, Madurai Special Division, Tamil Nadu Housing Board, Madurai and relevant certificate has also been produced. Thereafter, patta has been transferred in the name of the Tamil Nadu Housing Board and mutation also carried out in the revenue records.

Now, after taking possession of the land, the Government has decided to form a satellite town in the above area and the Government has also sanctioned a sum of Rs.120 crores for that purpose. After, sanctioning the amount, the Housing Board has also taken steps to prepare the Satellite Town Scheme layout measuring to an extent of 573.83 acres, which was also approved by the Local Planning Authority as early as on 17.02.2016. Thereafter, 57% of infrastructure works viz., laying road, drainage and water supply have been completed and the Tamil Nadu Housing Board also intended to allot major portion of house sites to poor and downtrodden people through Tamil Nadu Slum Clearance Board. All these facts have clearly proved that physical possession has already been taken by the respondents and development works have already been commenced. 8.

that when possession has been taken as early in the year 1995, after 22 years, now the petitioners have come up with these writ petitions, stating that they are in possession of the property. Even, assuming that the petitioners are in possession or cultivating the lands in dispute, it could be considered only as a trespass of the Government land. Once possession has been taken and it was handed over to the requiring body and the revenue records have been changed in the name of the Housing Board. Even assuming the petitioners have entered into the property and doing any cultivation, they can be considered only as trespass of the property belonging to the Government and it cannot be held that the physical possession was not taken from them.

Moreover, the revenue records clearly shows that physical possession has already been taken and mutation has been carried out in the revenue records. 9.The learned Additional Advocate General has relied upon the recent decision of the Hon'ble Supreme Court in Special Leave to Appeal (C) No.26281/2017 [Mahavir & Ors. Vs. Union of India and another], wherein it is stated that Section 24 (2) of the new Act cannot be invoked in such cases of dead claims or stale claims. 10.I have considered the rival submissions made on either side and perused the materials carefully.

11.The main contention of the learned counsel appearing for the petitioners is that after coming into force the new Act, as per Section 24(2) of the New Act, if award has been passed five years or more prior to the commencement of the new 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. Section 24(2) of the New Act reads as follows:- "24.Land acquisition process under Act 1 of 1894 shall be deemed to have lapsed in certain cases.

-(1) Notwithstanding anything contained in this Act, in any case of land acquisition, land proceedings initiated under the Land Acquisition Act, 1984 (1 of 1894),- (a)Where no award under Section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation, rehabilitation and resettlement shall apply ; or (b) where an award under said section 11 has been made, then, such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.

(2) Notwithstanding anything contained in subsection (1) in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 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 the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate

Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act.

Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified int eh notification for acquisition under Section 4 of the Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."

12.Now, the question arises for consideration is, whether after passing the award, physical possession of the lands has been taken by the respondents and whether compensation has been paid to the landowners.

13.So far as the contention regarding deposit of award amount is concerned, it is the contention of the respondents that after passing awards on 05.08.1994, award amount has been deposited under Sections 30 & 31 of the old Act in LAOP.No.75 of 1995 on the file of the Principal Sub Court, Madurai.

14.The learned Additional Advocate General has also produced a letter dated 06.02.2018 sent by the Principal Sub Judge, Madurai to the Revenue Divisional Officer and Land Acquisition Officer, Madurai, which clearly shows that the Special Tahsildar, Housing Board, Unit III, Madurai has deposited the award amount of Rs.1,57,406/-. The relevant portion of the said letter is extracted hereunder:

"As per the Land Acquisition Register, the Special Tahsildar (L.A) S.N.H.S. Unit No.III, Madurai, has deposited the award amount of Rs.1,57,406/- for acquiring the land for disputing the ownership of the property of Thoppur Village in S.No.26/1A, 26/1C and 26/2A under Sections 30 and 31(1) of the L.A.Act.

The totally award amount of Rs.1,57,406/- has been deposited to this Court for the following claimants as per award 7/94 dated 05.08.1994.

15.Apart from that, this Court also called for a report from the Principal Sub Judge, Madurai, pursuant to the same, the Principal Sub Judge, Madurai has sent a report dated 02.02.2018 stating that L.A.O.P.Nos.75 and 76 of 1995 on the file of the I Additional Sub Court, Madurai have been disposed of on 30.03.2005 and 29.04.2005 and the award amount has also been disbursed. The relevant portion of the said letter is extracted hereunder:- "I humbly submit that LAOP Nos.75/1995 and 76/1995 on the file of I Additional Sub Court, Madurai and the above cases have been disposed of on 30.03.2005 and 29.04.2005. The award amount of Rs.1,57,406/- in LAOP No.75/95 and the award amount of Rs.4,45,510/- in LAOP No.76/95 deposited into this Court respectively.

I further submit that the amount of Rs.22,404/- received by the claimant in LAOP 75/1995 by way of cheque and the balance amount of Rs.6,65,088/- (Renewal amount) invested in Indian Overseas Bank, District Court Branch, Madurai and the amount of Rs.42,994/- (two cheques) has been received by the claimant in LAOP 76/1995 by way of cheque and the balance amount of Rs.20,45,809/- (renewal amount) invested in Canara Bank, North Veli Street, Madurai."

From the above, it is clear that already award amount has been deposited in L.A.O.P.Nos.75 and 76 of 1995 on the file of the Principal Sub Court, Madurai in the year 1994 itself, hence, the first contention of the learned Counsel appearing for the petitioner cannot be countenanced.

16.So far as taking physical possession of the lands is concerned, it is the contention of the learned counsel for the petitioners that even though the lands in dispute have been handed over to the Tamil Nadu Housing Board, absolutely no materials are available to show that the respondents have taken physical possession from the petitioners.

17.Earlier, this Court by the order dated 31.01.2018, directed the respondents to produce the entire records. Pursuant to the same, today, the learned Additional Advocate General produced the records. I have perused the same carefully. From the perusal of the records, it could be seen that as early as on 23.03.1995 the lands in dispute have been handed over to the Tamil Nadu Housing Board by the Special Tahsildar. Thereafter, revenue records have been changed in the name of the Tamil Nadu Housing Board and till date all the revenue records stand in the name of the Tamil Nadu Housing Board only.

Further, from the perusal of the counter affidavit filed by the third respondent, it could be seen that now the Tamil Nadu Housing Board is developing a Satellite Town Project and a lay out plan has been approved by the Local Planning Authority and huge amount of money has also been sanctioned and they have also commenced infrastructure works viz., laying roads, drainage facilities and water supply etc., and more than 9,557 house sites have been earmarked in the said layout. All these clearly show that physical possession of property was taken and it was handed over to the Tamil Nadu Housing Board and now the Tamil Nadu Housing Board has also commenced the infrastructure works.

18.The learned counsel appearing for the petitioners submitted that the petitioners are doing cultivation work in the lands in dispute till date and electricity service connection also stands in their names. The learned counsel has also referred the proceedings of the third respondent dated 24.01.2017, wherein it is stated that the land owners wanted reconveyance of the lands, and they have also made representations to the District Collector and in order to enabling the District Collector to pass suitable orders,

the authorities are directed not to interfere in the cultivation work, but at the same time, the farmers are also directed not to prevent the Housing Board from forming a 38 meters road. Relying upon the above communication sent by the third respondent, the learned counsel contented that the petitioners are still cultivating the lands and they are in physical possession of the same. 19.A perusal of the above communication would show that, it is only a report submitted by the third respondent to the fourth respondent, wherein he has stated that since the reconveyance proposal is pending with the District Collector and till the applications are considered, the land owners may be permitted to cultivate the lands, and from the above communication, it cannot be considered that the petitioners are in physical possession of the property.

20.After issuance of declaration under Section 6 of the Old Act, the Collector is required to proceed and pass award under Section 11, after the award has been passed under Section 11, it is open to the Collector to take possession of the land under Section 16 of the Act, which shall thereupon absolutely vest with the Government. In the instant case, as already held that after passing award, the award amount has been deposited before the civil Court and physical possession was also taken from the land owners. Now, infrastructural works also been commenced in the area. If at all the petitioners are in possession of the property, it is only a trespass into the Government property and the petitioners are only trespassers, at any rate it cannot be considered that physical possession of the property not taken from the petitioners, and on that ground, they cannot claim any relief under Section 24(2) of the New Act.

21.The learned counsel appearing for the petitioners relied upon the judgment in the case of Banda Development Authority Vs. Mothilal Agarwal reported in (2011) 5 SCC 394, wherein the Hon'ble Apex Court has held as follows:- "(i)No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land.

(ii) If the acquired land is vacant, the act of the State Authority concerned to go to the spot and prepare a Panchnama will ordinarily be treated as sufficient to constitute taking of possession.

(iii)If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person, who has cultivated the land and take possession in the presence of Independent Witnesses and get their signatures on the Panchnama. Of course, refusal of the owner of the land or

building/structure may not lead to an inference that the possession of the acquired land has not been taken. (iv)If the acquisition is of a large tract of land, it may not be possible for the Acquiring/Designated Authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.

(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total Compensation is deposited in terms of Section 17(3 A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken."

22.The above judgment is followed in number of subsequent judgments. Subsequently, Division Bench of this Court in the case of TNHB Vs. iGate Global Solution Ltd., reported in 2016 2 CTC 241, after considering all the issues, has held as follows:- "60.The ratio deducible from the aforestated judicial pronouncements is that for taking over of possession of the land under Section 6 of the Old Act 1894, the Revenue Authorities must establish by producing some evidence, i.e., either preparation of Panchanama in the presence of the Witnesses or some other documents.

The Transfer Certificate subsequently prepared by the Revenue Authorities for delivering possession of the land in question to the Tamil Nadu Housing Board in absence of a Witness or Landowner, will not be sufficient to establish that possession of the lands was taken over by the Landowners. In the case on hand, it is strongly pleaded by the learned Counsel appearing for the Private Respondent that the Landowners or their successors are continuing possession till date. Thus, it is held that the possession of the lands in question were not taken over after passing of the Award."

23.Relying upon the above judgments, the learned counsel appearing for the petitioners submitted that even assuming that transfer has already been effected by the revenue authorities, taking over possession from the land owners must be established by preparing Panchnama in the presence of witnesses or by some other documents, but the same is lacking in the present case. The above contention of the learned counsel appearing for the petitioners cannot be countenanced for the simple reason that from the perusal of the available records, it could be seen that physical possession has been taken by the Government and it has been handed over to the

Tamil Nadu Housing Board. Thereafter, the revenue records have been transferred in the name of the Tamil Nadu Housing Board and the Tamil Nadu Housing Board is also making developmental works in the lands, and as per the counter affidavit, 57% infrastructures development works have been completed. Further, since it is clearly established by the respondents that the award amount has already been deposited in Court in the year 1995 itself, the petitioners cannot claim any right under Section 24(2) of the New Act. Hence, these writ petitions deserve to be dismissed. 24.In fine, these Writ Petitions are dismissed. No costs. Consequently, W.M.P.(MD)Nos.16663 and 20090 of 2017 are closed. Sd/- Assistant Registrar (AS) /True Copy/ Sub Assistant Registrar To

1. The Secretary to the Government of Tamil Nadu, Housing and Urban Development Department, Fort St.George, Secretariat, Chennai-600 009.