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2014 DIGILAW 1034 (MAD)

Jagathambal 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 petitioner submits that she is the owner of the lands comprised in S.F.No.136/1A, 136/1B and 136/1C, admeasuring an extent of 1.30.0 hectares, 0.02.5 hectares and 0.12.0 hectares respectively, situated at Saravampatti 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 Ganapathi (Phase-II) 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.271, (Housing and Urban Development Department), on 26.02.1991. The declaration under Section 6 of the Act came to be made in G.O.Ms.No.109 (Housing and Urban Development Department) on 16.03.1992. But, thereafter, she was not served with any notice calling her for appearing for an enquiry under Section 9(3) of the Old Act for passing of the Award. Further, she came to know and believe the same to be true that there is no award made in respect of the subject land. So far, she was 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 her to know about the award and receive the compensation payable to her. She further submits that she is in possession and enjoyment of the property. In fact, the compensation amount in respect of her land was not paid to her and the possession of the subject land was not taken from her by the fifth respondent. 3. The petitioner further submits that on 23.12.2013, her cousin brother viz., Thiru. Narashimman sought for information under Right to Information Act, 2005, in respect of her land regarding the passing of the award, taking of possession and the payment of compensation. 3. The petitioner further submits that on 23.12.2013, her cousin brother viz., Thiru. Narashimman sought for information under Right to Information Act, 2005, in respect of her land regarding the passing of the award, taking of possession and the payment of compensation. The Public Information Officer attached to the office of the fifth respondent by way of reply in proceedings dated 03.01.2014 and 09.01.2014, had informed that there are no documents to show that the possession of the subject land was taken from her by the Land Acquisition Officer. Further, the Public Information Officer, while replying to a question for handing over of possession, had also replied that there are no documents to show that the possession of the subject land was handed over to Tamil Nadu Housing Board. As such, it is quite clear that the possession of the subject lands were not taken under Section 16 of the Old Act by the fifth respondent or the fourth respondent from her at any point of time. Further, with regard to a question of deposit of compensation amount payable to her, it was replied that it was deposited on 18.05.1994, before the civil Court. For that, a letter dated 18.05.1994 was furnished. But that letter is only relating to a reference made under Section 30(2) of the Old Act and the same did not disclose the fact that the compensation amount payable to her is deposited before the civil Court and the same is lying in the deposit of the said as on today. 4. The petitioner further submits that from the reply under RTI it is evident that, she was not served with any notice under Section 12(2) of the Old Act after the passing of the award with regard to payment of compensation. However the fifth respondent while replying a question for passing of the award informed that an award came to be pronounced on 18.03.1994. But, from the information and documents furnished under RTI, it is gathered that only a draft award proposal, intended to be sent to the competent authority for getting prior approval as contemplated under Section 11 of the Old Act, was prepared on 11.03.1994. However, the said draft award proposal was not sent to the competent authority for getting prior approval as envisaged under the said Section. However, the said draft award proposal was not sent to the competent authority for getting prior approval as envisaged under the said Section. Under the Old Act any award to be pronounced by the Land Acquisition Officer shall be given prior approval as contemplated under Section 11 of the Old Act by the competent authority. The said approval is mandatory and it is a pre-condition for pronouncement of the award. In the present case, as seen from the documents and the reply, the draft award proposal was neither sent to the competent authority for getting prior approval nor the requisite prior approval was obtained so as to enable the Land Acquisition Officer to pronounce the award. In such circumstances, draft the award proceedings said to have been pronounced on 18.03.1994 is not an ward as contemplated under the Old Act. Hence, there is no legally valid and enforceable award made by the fifth respondent as contemplated under Section 11 of the Old Act. As such, the entire acquisition proceedings initiated under the Old Act become lapsed in view of Section 11-A of the Old Act. The petitioner 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. 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 New Act. 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 land owners are getting absolute right over the property. 6. The petitioner further submits 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 petitioner further submits 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. The petitioner additionally submits that the lands were not taken by the respondents 4 and 5 from the petitioner, 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 was already passed and their name was registered in the revenue records. But, 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 prior to 01.01.2014. But, the entries in the records as stated above is creating a cloud of 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 petitioner submits that in view of Section 11-A of the Old Act, the entire acquisition proceedings initiated under the Old Act become lapsed, since no valid award in conformity with Section 11 of the Old Act, was made within two years from the date of publication of the declaration made under Section 6 of the Old Act. The petitioner further submits that in view of the fact that the physical possession of the subject lands were not taken by the respondents 4 and 5 in accordance with law and the compensation amount was not paid to her till date, which is quite evident from the reply under Right to Information Act, the petitioner is 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 petitioner has approached the Office of Tahsildar, Coimbatore North Taluk to change the entries in the Revenue records in the name of the petitioner, by deleting the name of the second respondent, but the Revenue Officials informed the petitioner 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 petitioner has filed a petition before the fifth respondent seeking to issue a no objection thus enabling the petitioner to get the revenue records transferred in the name of the petitioner. So far, the petitioner has not received any communication from the fifth respondent. However, the petitioner has 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 petitioner 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 petitioner has 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.136/1A, 136/1B and 136/1C, admeasuring an extent of 1.30.0 hectares, 0.02.5 hectares and 0.12.0 hectares respectively, situated at Saravampatti Village, Coimbatore, belonging to the petitioner, 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.Thyagarajan appearing for the petitioner submits that the first respondent had approved the proposal for acquiring the petitioner's land in the year 1991, for which, G.O. has been issued. Subsequently, gazette notification was given. The respondent had not served 4(1) notification on the writ petitioner. Further, the said land has been classified as cultivable dry land. Till now, the petitioner has 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. The respondent had not served 4(1) notification on the writ petitioner. Further, the said land has been classified as cultivable dry land. Till now, the petitioner has 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 petitioner is 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 petitioner. The Village Administrative Officer has also given statement before the Land Acquisition Officer stating that the petitioner are the owner of the property and she is continuously cultivating the same. Further, she depends upon the income derived from the land. 8. The very competent Senior counsel, Mr.R.Thyagarajan further submits that the petitioner has received information from the respondents under Right to Information Act, which reveals that the compensation amount, so far, has neither been paid to the petitioner nor offered to the petitioner. 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.Thyagarajan has produced adangal extracts in respect of the petitioner's land which had been issued on 11.04.2014 by the Village Administrative officer of Vellakinaru Village. From the extract, it is seen that the petitioner is cultivating maize (Cholam). As such, it has been clearly proved through the competent revenue authority, who is maintaining the revenue records, that the petitioner is in continuous possession of the subject land, which is in dispute. 10. The very competent Special Government Pleader, Mr. From the extract, it is seen that the petitioner is cultivating maize (Cholam). As such, it has been clearly proved through the competent revenue authority, who is maintaining the revenue records, that the petitioner is 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 petitioner and others for implementing the "Ganapathi (Phase-II) 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 Ganapathi (Phase-II) 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 petitioner has given statement stating that she has 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 Ganapathi (Phase-II) Neighbourhood Scheme. Hence, a comprehensive lay-out plan had been prepared for an extent of 119.78 acres including the petitioner's lands. Now, the said lay-out plan is under process with the Town and Country Planning Department for approval. At this, stage, the petitioner's 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 26.02.1991 for acquiring the petitioner's and others lands in Vellaikinaru Village in Coimbatore District for the implementation of the Housing Scheme under Ganapathi (Phase-II) Neighbourhood Housing Scheme. Subsequently, the said notification was published in the newspaper also. 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 petitioner is 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 petitioner is in occupation of the said land. (ii) The respondents had proposed the Ganapathi (Phase-II) Neighbourhood Housing Scheme for acquiring the petitioner's land on 26.02.1991, for which, a Government Order had been passed in G.O.Ms.No.271, (Housing and Urban Development Department), dated 26.02.1991. As such, as on date, more than two decades have passed but the Ganapathi (Phase-II) 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 petitioner's 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 petitioner is entitled to receive relief since she is 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 has neither been paid to the writ petitioner nor offered to the petitioner. (iv) The Village Administrative Officer had given a statement before the Land Acquisition Officer stating that the petitioner is depending upon the revenue obtained from the cultivated land and in this arrangement for cultivation, one cannot obtain a transference unlike a Ganapathi (Phase-II) neighbourhood scheme, where a site can be found elsewhere. As such, the original proposal of the respondents, viz., implementation of the Ganapathi (Phase-II) 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 Ganapathi (Phase-II) Neighbourhood Scheme. The notification for acquiring the said land had been given in the year 1991, but as of now, the said land is under the possession of the writ petitioner. Even after a lapse of more than two decades, the respondents have not attempted to implement the scheme. The notification for acquiring the said land had been given in the year 1991, but as of now, the said land is under the possession of the writ petitioner. Even after a lapse of more than two decades, the respondents have not attempted to implement the scheme. As such, the inadequate planning of the respondents in initiating the Ganapathi (Phase-II) 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 petitioner's enjoyment rights for more than two decades. 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 (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 petitioner comprised in S.F.No.136/1A, 136/1B and 136/1C, admeasuring an extent of 1.30.0 hectares, 0.02.5 hectares and 0.12.0 hectares respectively, situated at Saravampatti 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.