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2014 DIGILAW 1031 (MAD)

Rajan v. Government of Tamil Nadu

2014-05-07

C.S.KARNAN

body2014
Judgment : 1. The short facts of the case are as follows:- The petitioners are co-owners of the lands of an extent of 0.81.0 hectares comprised in S.F.No.472/1A and an extent of 1.53.0 hectares of lands in S.F.No.473/2 situated at Vellakinaru Village, Coimbatore. Originally, the above said lands were subjected to land acquisition proceedings along with other lands in that locality initiated 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 Thudiyalur 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 notification under Section 4(1) of the Act came to be issued in G.O.Ms.No.319, (Housing and Urban Development Department), on 23.09.1997. The declaration under Section 6 of the Act came to be made in G.O.Ms.No.391 (Housing and Urban Development Department) on 23.10.1998. The said acquisition proceedings culminated in passing of an award in Award No.1 of 2000, dated 25.10.2000. Though the award came to be passed on 25.10.2000, they were neither intimated about the passing of the award nor served with any notice under Section 12(2) of the Old Act, so as to enable them to know about the award and to receive the compensation payable to them. In fact, the compensation was neither paid to them nor deposited before any competent civil Court. 3. The writ petitioners further submit that though the award was made in the year 2001, the respondents 4 and 5 viz., the District Collector, Coimbatore and the Special Tahsildar (Land Acquisition), who is attached to the Housing Scheme Unit, Coimbatore, respectively, never took possession of the lands from the petitioners. 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 first respondent by letter dated 28.11.2013, had informed that there are no records for taking possession of the land from the petitioners by the Land Acquisition Officer. The fifth respondent further informed them that the compensation was not also paid to the petitioners. The fifth respondent further informed them that the compensation was not also paid to the petitioners. However, the public information officer while replying to a question for handing over of possession, he furnished a transfer certificate dated 20.11.2000. From that, it could be seen that the Assistant Grade Revenue Officer is said to have handed over possession of lands in respect of the subject land along with other lands to Surveyor in the office of the third respondent, viz., the Executive Engineer / Administrative Officer. However, no records are furnished to show that on which date, the possession of the lands were taken under Section 16 of the Old Act by the fifth respondent, viz., Special Tahsildar, Land Acquisition, from the petitioners. Further, the Assistant Grade Revenue Inspector was not the authority authorized under the Old Act to perform the functions of the District Collector under Section 3(c) of the Old Act. Moreover, with regard to a question of deposit of compensation amount payable to the petitioners, it was replied that the compensation amount was deposited before the civil Court and for that a letter dated 23.11.2000 was furnished. From that letter, it is seen that a deposit was made before the civil Court, which is only relating to S.F.No.473/1 and not in respect of the lands belonging to the petitioners. 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 New Act. 4. 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 New Act. 4. 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 land owners are getting absolute right over the property." 5. 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. 6. 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. 6. The petitioners additionally submit that the lands were not taken by the respondents 4 and 5 from the petitioners, in the revenue records the second respondent's name is entered in view of the initiation of the acquisition proceedings under the Old Act, in respect of the subject property. Moreover, the respondents 2 to 3 are maintaining that they are the owners of the property since the award is already passed and the possession was handed over on 20.11.2000. After commencement of the New Act, the land owners are getting absolute right to maintain their possession and title to the property, as the physical possession of the lands were not taken from the land owners and the compensation was not paid under the Old Act. But, the entries in the records as stated above is creating a cloud doubt regarding the title of the property. Once the acquisition proceedings initiated under the Old Act has become lapsed for the reasons stated above, the entries in the records are not sustainable under law. The petitioners further submit 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. As such, as the land acquisition proceedings already initiated has become lapsed, the petitioners have approached the Office of Tahsildar, Coimbatore North Taluk to change the entries in the Revenue records in the name of the petitioners, by deleting the name of the second respondent, but the Revenue Officials informed the petitioners to get a no objection certificate from the fifth respondent, viz., the Special Tahsildar, Land Acquisition, so as to enable them to correct the entries in the revenue records. Immediately, the petitioners have filed a petition before the fifth respondent on 20.01.2014 seeking to issue a no objection thus enabling the petitioners to get the revenue records transferred in the name of the petitioner. So far, the petitioners have not received any communication from the fifth respondent. However, the petitioners have been orally informed by the officials in the office of the fifth respondent that such a no objection certificate will not be given as the land acquisition proceedings under the Old Act have attained finality in view of passing of the award and handing over of possession to Housing Board. They have also informed the petitioners that only after getting instructions from the Government they can act and they have not received any instructions from the Government till date. Hence, the petitioners have filed the above writ petition to declare the land acquisition proceedings initiated under the Land Acquisition Act, 1894, in respect of lands of an extent of 0.81.0 hectares comprised in S.F.No.472/1A and an extent of 1.53.0 hectares of lands in S.F.No.473/2 situated at Vellakinaru Village, Coimbatore, belonging to the petitioners, 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). 7. The highly competent Senior Counsel, Mr.R.Muthukumarasamy appearing for the petitioners submits that the first respondent had approved the proposal for acquiring the petitioners' land in the year 1997, 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 depends upon the income derived from the land. 8. 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 depends upon the income derived from the land. 8. The very competent Senior counsel, Mr.R.Muthukumarasamy 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. 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." 9. Further, the very competent Senior Counsel, Mr.R.Muthukumarasamy 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 continuous possession of the subject land, which is in dispute. 10. 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 continuous possession of the subject land, which is in dispute. 10. 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 "Thudiyalur 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. Subsequently, the said land had been handed over to the third respondent under transfer certificate issued by the Assistant Grade Inspector to the Surveyor, who is attached to the third respondent's office. From that time onwards, the acquired land is under the continuous control and maintenance of the respondents. 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 Thudiyalur Neighbourhood Scheme. 11. 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 Thudiyalur 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. 12. 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. 12. 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 23.09.1997 for acquiring the petitioners' and others lands in Vellaikinaru Village in Coimbatore District for the implementation of the Housing Scheme under Thudiyalur 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 and also certified that the lands have been taken over by them on 20.11.2000 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 Thudiyalur Neighbourhood Housing Scheme for acquiring the petitioners' land on 23.09.1997, for which, a Government Order had been passed in G.O.Ms.No.319, (Housing and Urban Development Department), dated 23.09.1997. As such, as on date, more than a decade has passed but the Thudiyalur 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 Assistant Revenue Officer handed over possession of the land to the Surveyor, who is attached to the Executive Engineer / Administrative Officer, Tamil Nadu Housing Board Unit, Coimbatore, on 20.11.2000. Further, there is no documentary proof to show that the compensation amount had been paid to the writ petitioners. (iv) The Assistant Revenue Officer handed over possession of the land to the Surveyor, who is attached to the Executive Engineer / Administrative Officer, Tamil Nadu Housing Board Unit, Coimbatore, on 20.11.2000. But, on the strength of the said transfer certificate, it is observed that the Executive Engineer, Tamil Nadu Housing Board, Coimbatore, had not occupied the said acquired land. Therefore, the purpose for which the lands were acquired for Thudiyalur neighbourhood scheme had been rendered redundant. (v) 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. Though the Assistant Grade Revenue Officer's transfer certificate dated 20.11.2000 reveals that the possession of the acquired land property has been handed over to the Surveyor who is attached to the third respondent office, the said certificate is nothing but a self serving document and as such, the acquisition proceedings of the respondents of the petitioners' lands are unfit for operation and hence, this Court declares that the respondents acquisition proceeding has lapsed. (vi) This Court's further view is that there is an inordinate delay on the part of the respondents for implementing the Thudiyalur Neighbourhood Scheme after acquiring the petitioners' land. The notification for acquiring the said land had been given in the year 1997, 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 Thudiyalur 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, 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. 13. 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 (vi), 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 0.81.0 hectares comprised in S.F.No.472/1A and an extent of 1.53.0 hectares of lands in S.F.No.473/2 situated at Vellakinaru Village, Coimbatore, belonging to the petitioners, 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.