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2014 DIGILAW 1029 (MAD)

Sudha v. Government of Tamil Nadu

2014-05-07

C.S.KARNAN

body2014
Judgment : 1. The short facts of the case are as follows:- The writ petitioners submit that one Mr.V.M.Ramasamy was the owner of the land of an extent of 0.97.0 hectares comprised in S.F.No.527/1D situated at Vellaikinaru Village in Coimbatore District. The said V.M.Ramasamy (Late) was the father of the petitioners. He died intestate on 25.12.1994 leaving behind the petitioners and their mother viz, Mrs.R.Mani as his only legal-heirs to succeed his property. Till his life time, he was in possession and enjoyment of the lands. After his demise, the petitioners and their mother were in possession and enjoyment of the property. The said R.Mani died intestate on 19.12.2013 leaving behind the petitioners as her only legal-heirs. The revenue records is still standing in the name of said Ramasamy. Now, the petitioners being the absolute owners of the property, are in possession and enjoyment of the property. Originally, the above said lands were subjected to land acquisition proceedings along with other lands in that locality under the Land Acquisition Act, 1894, herein after called "the Old Act", by the first respondent, viz., the Secretary to Government, Housing and Urban Development for the purpose of Neighbourhood Scheme sponsored by the second and third respondents herein, viz., the Tamil Nadu Housing Board, represented by its Chairman & Managing Director and the Executive Engineer / Administrative Officer, who is attached to the Tamil Nadu Housing Board Unit, Coimbatore. 2. The respondent issued a notification under Section 4(1) of the Land Acquisition Act through its Government Order in G.O.Ms.No.235 (Housing and Urban Development Department), on 22.06.1998. The declaration under Section 6 of the Act came to be made in G.O.Ms.No.288 (Housing and Urban Development Department) on 12.07.1999. The said acquisition proceedings culminated in passing of an award in Award No.3 of 2001, dated 29.06.2001. Though the award came to be passed on 29.06.2001, the petitioners were neither intimated about the passing of the award nor served with any notice under Section 12(2) of the said Act, so as to enable them to know about the award and to receive the compensation payable to them. In fact, the compensation payable to them was neither paid to the said R.Mani or the petitioners nor deposited before any competent civil Court till date. 3. In fact, the compensation payable to them was neither paid to the said R.Mani or the petitioners nor deposited before any competent civil Court till date. 3. The writ petitioners additionally added that the award was passed in the year 2001 and the respondents 4 and 5 never took possession of the lands from the petitioners. But, when the petitioners sought for information under Right to Information Act regarding the taking of possession and the payment of compensation, the Public Information Officer attached to the office of the fifth respondent by letter dated 28.11.2013, had informed that there are no records for taking possession of the land from the petitioners. The fifth respondent also informed the petitioners that the compensation was not paid to the petitioners. The Public Information Officer, while replying to a question for handing over of possession, has replied that except S.F.No.527/1D, other lands were handed over. Further, with regard to question for deposit of compensation amount payable to the petitioners, it was replied that it was deposited before the civil Court and also furnished a letter to that effect dated 11.07.2002. In that letter, it is stated that a reference under Section 30 and 31(2) of the Old Act was made to Sub-Court. But there is nothing in that letter to show that the award in respect of the subject land was deposited before the concerned Court. It was also replied that the compensation amount was not disbursed to land owners. Neither the petitioners nor the said R.Mani have challenged the said acquisition proceedings. 4. The petitioners additionally added that in such circumstances, now, the Government of India brought in new Land Acquisition Act, in the place of "Old Act", viz., the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (Act 30 / 2013), now onwards called the "New Act" and the same came into effect from 01.01.2014. As per the New Act, if the physical possession of the lands are not taken or the compensation is not paid, in respect of the proceedings initiated under the Old Act, the entire proceedings initiated under the Old Act shall be deemed to have been lapsed in view of Section 24(2) of the Act 30 of 2013. 5. As per the New Act, if the physical possession of the lands are not taken or the compensation is not paid, in respect of the proceedings initiated under the Old Act, the entire proceedings initiated under the Old Act shall be deemed to have been lapsed in view of Section 24(2) of the Act 30 of 2013. 5. In the language of Section 24, the Land Acquisition process under Act No.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 proceedings initiated under the Land Acquisition Act, 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 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 Sub-Section (1), in case of Land Acquisition Proceedings initiated under the Land Acquisition Act, 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 in 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 provision 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 in the notification for acquisition under Section 4 of the Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act." Hence, in view of the New Act, the petitioners are getting absolute right over the property." 6. The petitioners further submit that after the commencement of the New Act, the petitioners are getting an absolute right to retain the possession and title of the property for the reasons stated supra. Hence, the petitioners now have decided to utilize and develop the subject land according to their family requirement. The petitioners further submit that after the commencement of the New Act, the petitioners are getting an absolute right to retain the possession and title of the property for the reasons stated supra. Hence, the petitioners now have decided to utilize and develop the subject land according to their family requirement. In order to develop the said lands, the petitioners have approached the Local Planning Authorities, in the office of the Coimbatore Municipal Corporation. At that time, the petitioners are informed that as per their records, the lands are still covered under acquisition for Housing Board and that unless the petitioners would get a no objection certificate from the fifth respondent, they could not deal with any application in respect of the lands under acquisition. Thereafter, on enquiry in the office of the Registration Department also it is found that the subject land is covered under the land acquisition proceedings for Housing Board under the Old Act. As such, a cloud of doubt is created regarding the subject property. In these circumstances, the petitioners have sent a representation to the fifth respondent on 20.01.2014 seeking a direction to issue necessary instructions and to issue no objection certificate so as to make necessary applications before the authorities concerned to enable the petitioners to develop their property. But, till date, the petitioners have not received any reply from the fifth respondent. The petitioners further submit that in the absence of any records to show and prove the fact that the physical possession of the lands were taken and the compensation was paid, as per Section 24 (2) of the New Act, the entire land acquisition proceedings initiated under the Old Act become lapsed. 7. The petitioner additionally submits that in view of the fact that the possession of the subject lands were not taken by the respondents 4 and 5 as contemplated under Section 16 of the Old Act, in accordance with law and as the compensation amount was not paid till date, which is quite evident from the reply under Right to Information Act, the petitioners are entitled to seek for a declaration that the entire land acquisition proceedings initiated under the Old Act is deemed to have lapsed in view of the Section 24(2) of the New Act. The information and documents received under RTI clearly established the case of the petitioners. The information and documents received under RTI clearly established the case of the petitioners. Hence, the petitioners have filed the above writ petition to declare, in respect of lands of an extent of 0.97.0 hectares comprised in S.F.No.527/1D, situated at Vellaikinaru Village, Coimbatore, as lapsed in view of the "Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013"(Act 30 / 2013). 8. The highly competent Senior Counsel, Mr. R.Thyagarajan appearing for the petitioners submits that the first respondent had approved the proposal for acquiring the petitioners' land in the year 1998, for which, G.O. has been issued. Subsequently, gazette notification was given. The respondent had not served 4(1) notification on the writ petitioners. Further, the said land has been classified as cultivable dry land. Till now, the petitioners have been cultivating the said land without interference of the respondents. The respondents have neither paid the compensation amount for the said land nor was the possession taken by them. As such, the writ petitioners are entitled to get relief under Section 24(2) of the New Act 30 of 2013, as the compensation has not been paid and possession had not been taken from the petitioners. The Village Administrative Officer has also given statement before the Land Acquisition Officer stating that the petitioners are the owner of the property and they are continuously cultivating the same. Further, they depend upon the income derived from the land. He further submits that the patta stood in the name of the land owners. 9. The very competent Senior counsel, Mr. R.Thyagarajan further submits that the petitioners have received information from the respondents under Right to Information Act, which reveals that the compensation amount, so far, has neither been paid to the petitioners nor deposited before the civil Court. Further, it discloses that the possession was not taken by the respondents. As such, Section 24(2) of the New Act is squarely applicable to the instant case for getting remedy. The acquisition proceedings have become lapsed as per the New Act. Further, it discloses that the possession was not taken by the respondents. As such, Section 24(2) of the New Act is squarely applicable to the instant case for getting remedy. The acquisition proceedings have become lapsed as per the New Act. The learned Senior Counsel has cited the following judgments in support of his contentions:- (i) PUNE MUNICIPAL CORPN v. HARAKCHAND MISIRIMAL SOLANKI reported in (2014) 3 Supreme Court Cases 183 "A. Land Acquisition and Requisition - Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Ss.24(1) & (2) - Lapse of acquisition proceedings initiated under 1894 Act, where 'compensation has not been paid to landowners' and award was made 5 years or more prior to commencement of 2013 Act - Expression "compensation has not been paid" occurring in S.24(2) – "paid" - Import of -Deposit of compensation amount in Government treasury, held not enough - Held, for purpose of S.24(2) compensation shall be regarded as "paid" if compensation is actually tendered to landowners / interested persons, or, is offered to interested persons and on their refusal to accept the same such compensation is deposited in Court. - Expression "paid" used in S.24(2) includes deposit of compensation in Court, and cannot be limited to mean "offered" or "tendered" to landowners / persons interested, and neither can receipt of compensation by landowners/persons interested be inferred as the only meaning thereof - If literal construction is given to expression "paid", then it would amount to ignoring the procedure, made and manner of deposit of compensation in Court as provided in S.31(2) of 1894 Act, when landowners/interested persons refuse to accept compensation. In instant case, amount of compensation was deposited in Government treasury on 31.01.2008 which is not equivalent to "compensation paid to/persons interested" and award had been made more landowners than 5 years previously - Thus, subject land acquisition proceedings had lapsed." (ii) Raghbir Singh Sherawat v. State of Haryana reported in (2012) 1 Supreme Court Cases 792 "B. Land Acquisition Act, 1894 - Ss.4(1), 6(1), 11 and 16 - Vesting of acquired land in Government - Taking of possession - Mode of - Principles reiterated - Actual possession not symbolic / possession on paper - Land with standing crops - Revenue record showing possession taken and delivery of land on which there were standing crops - Inference of "actual possession" in absence of notice to landowners, whether can arise - Held, possession of acquired land had not been taken - As crops were standing on several parcels of land including appellant's land, possession could not have been taken without giving notice to landowners - State has not produced any other evidence to show that actual possession of land on which crops were standing had been taken after giving notice to appellant or that he was present at the site when possession of acquired land was delivered -Hence, record prepared by Revenue Authorities showing delivery of possession of acquired land to HSIIDC has no legal sanctity. 23. The respondents have not produced any other evidence to show that actual possession of the land, on which crop was standing, had been taken after giving notice to the appellant or that he was present at the site when possession of the acquired land was delivered to the Senior Manager of HSIIDC. 23. The respondents have not produced any other evidence to show that actual possession of the land, on which crop was standing, had been taken after giving notice to the appellant or that he was present at the site when possession of the acquired land was delivered to the Senior Manager of HSIIDC. Indeed, it is not even the case of the respondents that any independent witness was present at the time of taking possession of the acquired land." (iii) PATASI DEVI v. STATE OF HARYANA reported in (2012) 9 Supreme Court Cases 503 A. Land Acquisition Act, 1894 - Ss.4, 6 and 16 - Possession of acquired land - Burden of proof Absence of any evidence to show that actual or even symbolic possession of appellant's land and house constructed over it was taken by competent authority between 09.12.2009 i.e., date on which award was passed and 20.01.2010 i.e., date on which writ petition was filed, and the same was handed over to HUDA - Hence, impugned judgment dismissing appellant's petition solely on ground that it was filed after passing of award, unsustainable - Constitution of India -Art. 226 -Maintainability of Final orders. B. Land Acquisition Act, 1894 - Ss.4 and 6 -Challenge to acquisition on ground of colourable exercise of power - Evidence showing that though notifications issued under Ss.4 and 6 recited that land was acquired for public purpose, but real object of acquisition was to benefit coloniser R-6 who wanted to develop the area into residential colony -Moreover, appellant's land was surrounded by land R-6 and earlier also land acquired for same public purpose was transferred to R-6 -Hence, acquisition of appellant's land was vitiated due to colourable exercise of power Acquisition quashed." 10. Further, the very competent Senior Counsel, Mr.R.Thyagarajan has produced adangal extracts in respect of the petitioners' lands which had been issued on 11.04.2014 by the Village Administrative officer of Vellakinaru Village. From the extract, it is seen that the petitioners are cultivating maize (Cholam). As such, it has been clearly proved through the competent revenue authority, who is maintaining the revenue records, that the petitioners are in continous possession of the subject land, which is in dispute. 11. From the extract, it is seen that the petitioners are cultivating maize (Cholam). As such, it has been clearly proved through the competent revenue authority, who is maintaining the revenue records, that the petitioners are in continous possession of the subject land, which is in dispute. 11. The very competent Special Government Pleader, Mr.T.N.Rajagopalan, appearing for the respondents 1, 4 and 5 submits that the first respondent issued G.O. for acquiring the lands of the petitioners and others for implementing the "Neighbourhood Scheme". Following the G.O., notification was given in the Government gazette as well as two tamil dailies. Thereafter, 5-A enquiry was conducted, in which, the landowners had participated and their statements were recorded. Thereafter, Section 6 declaration was published. The compensation amount had been properly assessed and remitted in the concerned Court. Thereafter, the Housing Board has taken further process for implementing the said Neighbourhood Scheme. 12. The highly competent counsel, Mr.R.V.Babu, appearing for the second and third respondents submits that the 4(1) notification was published as per G.O. issued by the first respondent in the Government gazette as well as two Tamil dailies. Subsequently, 5-A enquiry was conducted. In the said enquiry, the petitioners have given statement stating that they have no objection in the acquirement of their lands. Further, the compensation amount had been properly assessed and the same was awarded. Thereafter, declaration had been published under Section 6 of the Act. Further, the notice had been served under Section 12(2) of the Old Act. Now, the second and third respondents are taking speedy action to develop the said land for Neighbourhood Scheme. Hence, a comprehensive lay-out plan had been prepared for an extent of 119.78 acres including the petitioners' lands. Now, the said lay-out plan is under process with the Town and Country Planning Department for approval. At this, stage, the petitioners' prayer is not maintainable. 13. From the above discussions, this Court is of the view that:- (i) The respondents had given Section 4(1) notification in the Government gazette on 22.06.1998 for acquiring the petitioners' and others lands in Vellaikinaru Village in Coimbatore District for the implementation of the Housing Scheme under Neighbourhood Housing Scheme. Subsequently, the said notification was published in the newspaper also. Further, it was contended that the respondents have followed all legal formalities and acquired the said land and also passed an award. Subsequently, the said notification was published in the newspaper also. Further, it was contended that the respondents have followed all legal formalities and acquired the said land and also passed an award. But, as of now the petitioners are in physical possession and in enjoyment of the same by way of continuous cultivation. The same was proved after production of adangal certificate issued by the Village Administrative Officer stating that the petitioners are in occupation of the said land. (ii) The respondents had proposed the Neighbourhood Housing Scheme for acquiring the petitioners' land on 22.06.1998, for which, a Government Order had been passed in G.O.Ms.No.235, (Housing and Urban Development Department), dated 22.06.1998. As such, as on date, more than a decade has passed but the neighbourhood scheme has not been implemented and as such, there is a colossal delay for implementing the said housing scheme. Therefore, it is quite obvious that the said petitioners' lands are absolutely not necessary as initially mentioned by the first respondent, viz., the Secretary to Government, Housing and Urban Development Department, Chennai. (iii) As per the Section 24(2) of the New Act 30 of 2013, the writ petitioners are entitled to receive relief since they are in physical possession and actively pursuing continuous land cultivation without interference, from the respondents. Further, there is no documentary proof to show that the compensation amount had been paid to the writ petitioners. (iv) The Village Administrative Officer had given a statement before the Land Acquisition Officer stating that the petitioners are depending upon the revenue obtained from the cultivated land and in this arrangement for cultivation one cannot obtain a transference unlike a neighbourhood scheme, where a site can be found elsewhere. As such, the original proposal of the respondents, viz., implementation of the neighbourhood scheme, will not be affected, if implemented elsewhere from the present site. (v) This Court's further view is that there is an inordinate delay on the part of the respondents for implementing the Neighbourhood Scheme. The notification for acquiring the said land had been given in the year 1998, but as of now, the said land is under the possession of the writ petitioners. Even after a lapse of more than a decade, the respondents have not attempted to implement the scheme. The notification for acquiring the said land had been given in the year 1998, but as of now, the said land is under the possession of the writ petitioners. Even after a lapse of more than a decade, the respondents have not attempted to implement the scheme. As such, the inadequate planning of the respondents in initiating the Neighbourhood Scheme only shows that the scheme is neither important nor essential. Besides, there is an inordinate delay in putting into operation the said scheme, considering that the span of human life itself is limited. Further, it is evident that there is extensive administrative delay that had disturbed the petitioners' enjoyment rights for more than a decade. Besides this, the land acquisition proceedings of the respondents is creating a mode of encumbrance over the said property. 14. On considering the facts and current position of the case and arguments advanced by the learned counsels on all sides and on perusing the records produced by the respondents and this Court's view listed above as (i) to (v), this Court allows the above writ petition and declares that the land acquisition proceedings initiated under the Land Acquisition Act, 1894, in respect of lands belonging to the petitioners comprised in lands of an extent of 0.97.0 hectares comprised in S.F.No.527/1D, situated at Vellaikinaru Village, Coimbatore, has lapsed in view of the "Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013"(Act 30 / 2013). Accordingly ordered. There is no order as to costs.