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2014 DIGILAW 3080 (MAD)

M. Murugesan v. Government of Tamil Nadu

2014-09-03

C.S.KARNAN

body2014
Judgment 1. The short facts of the case are as follows:- The petitioner submits that the subject property situated in Survey No.572/A and Survey No.575 to an extent of 1.38.5 hectare in Hosur Village, Krishnagiri District was originally belonging to his grandfather by right of purchase. It was inherited by his father S.Munivegadappa and after his death in the year 2010, he was in possession and enjoyment of the property. The said lands were used for agricultural purpose. The said lands along with other lands of larger extent were acquired by the Government for implementation of common housing development scheme by invoking Land Acquisition Act 1894 and by operation of a new law which came into effect from 01.01.2014, the present writ petition is filed seeking for declaration, declaring that the said acquisition is lapsed as per Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 i.e, the Central Act 30 of 2013, herein after referred to as "the Central Act 2013." 2. The petitioner additionally added that in the present case Section 4(1) notice was gazetted on 30.01.1991, followed by Section 6 Declaration made on 08.04.1992. Subsequently, an award came to be passed vide Award No.2 of 1994, dated 10.04.1994. Hence, the award was passed more than 10 years prior to the commencement of the present Act 2013. Secondly, no compensation was paid or deposited to the petitioner till date and this can be ascertained by the respondents own communication under the Right to Information Act, dated 19.07.2011 which affirmed the fact that the compensation amount had not been paid to the petitioner. Thirdly, the physical possession is also with the petitioner and this fact can be ascertained from the possession certificate issued by the Village Administrative Officer. Hence, by operation of law i.e., Section 24(2) of the Central Act 2013, the said land acquisition is deemed to be lapsed. Further, the present writ petition is filed not withstanding the fact that the petitioner had earlier moved this Court, seeking for reconveyance of land by invoking Section 48B of the Land Acquisition Act, 1894 and after it was dismissed by this Court, the petitioner preferred an appeal in W.A.No.977 of 2013 and the said appeal is pending. Further, the present writ petition is filed not withstanding the fact that the petitioner had earlier moved this Court, seeking for reconveyance of land by invoking Section 48B of the Land Acquisition Act, 1894 and after it was dismissed by this Court, the petitioner preferred an appeal in W.A.No.977 of 2013 and the said appeal is pending. The present writ petition is filed by virtue of the passing of the New Act, i.e., The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which was passed subsequent to the filing of the above said appeal. Further, there is no bar in filing this petition in view of the operation of Section 24 of the New Act 2013. 3. The petitioner further submits that in similar circumstances, wherein, in a similar issue, this Court in Writ Appeal No.918 of 2010, wherein the facts are similar to that of petitioner's case and it was in respect of adjacent land where the issue of reconveyance was sought and which was negativated by the learned Single Judge, this Court in the above said Appeal following the judgment of the Hon'ble Supreme Court, referred above held as follows:- "20. The Award No.17/1994 came to be passed on 12.8.1994, and there is a clear indication in the said award, that the third respondent was very much conscious of the fact that the appellant and his brother have refused to receive the compensation and it was further stated that the compensation amount will be deposited by invoking Section 31(2) of the Central Act, 1894. The second respondent/Tamil Nadu Housing Board without any loss of time, has issued a cheque dated 2.2.1995, for a sum of Rs.1,79,53,793/-, which includes the compensation amount in respect of Award No.17/1994 dated 12.8.1994. The third respondent, after receipt of the said cheque, in turn, deposited the same to the credit of "Civil Deposit for works done for public bodies work deposit" on 16.2.1995; but, he fails to deposit the compensation amount in respect of Award No.17/1994, on the file of the then jurisdictional Court viz. The third respondent, after receipt of the said cheque, in turn, deposited the same to the credit of "Civil Deposit for works done for public bodies work deposit" on 16.2.1995; but, he fails to deposit the compensation amount in respect of Award No.17/1994, on the file of the then jurisdictional Court viz. Sub Court at Krishnagiri, by invoking Section 31(2) of the Central Act, 1894, and only pursuant to the interim order dated 27.9.2012, made in this writ appeal, the third respondent has withdrawn a sum of Rs.4,06,199/-from the credit of the above said Account and deposited the same on the file of the present jurisdictional Court viz. Sub Court at Hosur, on 29.10.2012, that too after the expiry of the time granted by this Court. It is to be noted that if extension of time was obtained from this Court and the amount was deposited prior to 1.1.2014, the provisions of Section 24(2) of Act 30 of 2013 may not apply and the appellant could have been denied of the relief. In the light of Section 24 (2) of Central Act 30 of 2013 coupled with the above cited decision of the Hon'ble Supreme Court of India, though the award came to be passed five years or more prior to the commencement of the present Central Act 30 of 2013, which came into effect from 1.1.2014, the third respondent has not chosen to withdraw the compensation amount deposited by him to the credit of the said Account, and deposit the same on the file of the jurisdictional Sub Court on time. 21. In view of the above said subsequent development from 1.1.2014, this Court is of the view that the land acquisition proceedings initiated in respect of lands admeasuring 0.62.0 hectares in survey No.890/1B and 0.49.0 hectares in Survey No.889/1B, can be treated to be deemed to have lapsed. However, it is always open to the respondents to initiate proceedings afresh in terms of Central Act 30 of 2013 if the circumstances warrant so. 22. The contention of the State that in the earlier round of litigation, the appellant was denied relief and hence he is not entitled to indirectly challenge the proceeding cannot be countenanced as the challenge now made is for not depositing the compensation in the Court, which is in subsequent stage and by operation of law, the proceeding is deemed to be lapsed. 23. 23. In the result, this writ appeal is allowed and the order dated 29.3.2010, made in W.P.No.13800/2008, is set aside and consequently, Section 4(1) Notification in G.O.Ms.No.850, Housing and Urban Development Department, dated 21.5.1991, and Section 6 Declaration in G.O.Ms.No.528, Housing and Urban Development Department, dated 12.8.1992, insofar as the land admeasuring to an extent 0.62.0 hectares in Survey No.890/1B, and the land admeasuring to an extent of 0.49.0 hectares in Survey No.889/1B, are deemed to have lapsed. However, the respondents are at liberty to initiate proceedings afresh in accordance with Central Act 30 of 2013. The respondents are permitted to withdraw the sum of Rs.4,06,199/- allegedly deposited, with accrued interest if any, in respect of Award No.17/1994. In the circumstances of the case, there shall be no order as to costs." In the light of the above circumstances, the petitioner has filed the above writ petition and seeking a remedy by virtue of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 i.e, the Central Act 30 of 2013 as the subject matter of the land had been acquired after initiating the Land Acquisition Act, 1894, shall be deemed to have lapsed since the award under Section 11 of 1894 Act, was made more than 5 years prior to commencement of 2013 Act and neither compensation has been paid to the owners nor the amount of compensation has been deposited in the Court by the Special Land Acquisition Officer, the third respondent herein. Further, the physical possession is also vested with the writ petitioner. 4. The petitioner further states that it is necessary to refer to Section 24, which reads as follows:- "(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." 5. The petitioner additionally added that the present issue is covered by the judgment of the Hon'ble Apex Court reported in (2014) 3 SCC 183 : 2014 AIR SCW 787 (PUNE MUNICIPAL CORPORATION AND ANOTHER V. HARAKCHAND MISIRIMAL SOLANKI AND OTHERS) wherein, the Hon'ble Supreme Court held that by virtue of Section 24(2) of the Central Act 30 of 2013, the subject acquisition shall be deemed to have been lapsed because the award under Section 11 of the Central Act, 1894, came to be passed more than five years prior to the commencement of the present Act and neither compensation has been paid to the owners, nor the amount of compensation has been deposited in the Court by the Land Acquisition Officer. Hence, the writ petitioner has filed the above writ petition to declare that the Land Acquisition Proceedings initiated for implementation of common Housing Development Scheme dated 30.01.1991 under Section 4(1) followed by Section 6 Declaration dated 08.04.1992 and the award vide award No.2/1994, dated 10.04.1994 passed under Land Acquisition Act 1894 shall be deemed to have been lapsed by virtue of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 i.e, the Central Act 30 of 2013 in respect of the petitioner's property situated in survey No.572/A and and in Survey No.575 to an extent of 1.38.5 hectares in Hosur Village, Krishnagiri District. 6. The second respondent, viz., the Managing Director, who is attached to the Tamil Nadu Housing Board has filed a counter statement and resisted the above writ petition. 6. The second respondent, viz., the Managing Director, who is attached to the Tamil Nadu Housing Board has filed a counter statement and resisted the above writ petition. The second respondent has stated that the petitioner has suppressed the facts and he has no locus standi to maintain the writ petition claiming absolute right over the property in Survey No.572/A and Survey No.575 to an extent of 1.38.5 hectare in Hosur Village, Krishnagiri District. The second respondent has further submitted that the lands have been acquired for implementation of Hosur Neighbourhood Housing Scheme totally to an extent of 212.94 acres in Hosur Village. The lands mentioned in the writ petition have been acquired after Section 4(1) Notification and Section 6 Declaration under Land Acquisition Act issued on 30.01.1991 and 08.04.1992 respectively. In pursuant to the above said notifications, an award was passed in Award No.2 of 1994. The award amount was deposited to the Land Acquisition Officer as per the Board's sanction order No.LA II (4)/27198/92, dated 16.03.1994 vide cheque No.315327/28.03.1994. 7. The second respondent additionally stated that the notices under the Land Acquisition Act were issued to the landowners and interested persons appeared for enquiry and recorded their claims and objections. In respect of the property mentioned by the petitioner, it originally belonged to the following persons as per patta No.1046 of Hosur Village, viz., 1) R.Chowdayya Chetty, 2) Basha Sahib, 3) Papanna S/o.Thimmaraya Chetty. The award reflects that Thiru.Chowdayya Chetty had three wives and he died 5 years prior to the date of award. During the award enquiry Tmt.Kamalamma, C.Subramani, C.Manohar and C.Munivenkatappa had appeared and recorded their statements. The details of the legal-heirs as mentioned in the award are as follows:- 1) Tmt.Kamalamma, Chowdayya Chetty's third wife 2) C.Munivenkatappa, Chowdayya Chetty's first wife only son 3) C.Subramani, Chowdayya Chetty's third wife Kamalamma's son 4) C.Manohar, Chowdayya Chetty's third wife Kamalamma's son 5) C.Ramamani, Chowdayya Chetty's third wife's daughter 6) C.Vanajakshi, Chowdayya Chetty's third wife's daughter; 8. The second respondent has further submitted that if a ground of attack was available in the first or second round of litigation and if the petitioner has not chosen to raise it at that time, the same contention cannot be raised in the next round of litigation as the same will be barred by principle of constructive resjudicata. The second respondent has further submitted that if a ground of attack was available in the first or second round of litigation and if the petitioner has not chosen to raise it at that time, the same contention cannot be raised in the next round of litigation as the same will be barred by principle of constructive resjudicata. The Division Bench of this Court in Writ Appeal, in W.A. (MD)No.726 of 2013, by its judgment dated 28.04.2014, while dealing with the same issue has observed as follows:- "39. But, Act 30 of 2013 cannot be used as magic wand to ressurect the ghosts of the past. In case were the acquisition proceedings had attained finality 20 years ago, this Court has nothing to interfere, by taking note of the shift in the focus...." Hence, the second respondent entreats the Court to dismiss the above writ petition. 9. The highly competent counsel Mr.U.M.Ravichandran appearing for the petitioner submits that the respondents have initiated Land Acquisition Proceedings under Section 4(1), dated 30.01.1991 for acquiring the land for formation of the Neighbourhood Scheme in Hosur Village. After Acquisition, the respondents have neither paid the compensation amount to the landowners nor taken the acquired land in their possession for their purpose as mentioned above. Further, the respondents had passed a common award on 10.04.1994 and mentioned the quantum of compensation. However, the compensation amount had not been granted in the name of landowners by way of cheque or any other mode of payment. The highly competent counsel further submits that the Village Administrative Officer had issued a possession certificate stating that the petitioner and his brothers are in possession and doing cultivation over the said land. Though the land acquisition proceedings had been initiated in the year 1991 for Neighbourhood Scheme, as on date, the said scheme had not been implemented even after a lapse of 23 years. It is quite crystal clear and an admitted fact that the landowners have not been paid compensation and in addition to that the landowners are remaining in possession of the land and also doing cultivation, without any interference. The respondents have not produced any documentary evidence to prove that any compensation amount had been paid to the landowners or deposited with any statutory authority. The respondents have not produced any documentary evidence to prove that any compensation amount had been paid to the landowners or deposited with any statutory authority. Therefore, the writ petitioner is entitled to get relief under Section 24(2) of the Central Act 30 of 2013, which came into force on 01.01.2014. In support of his contentions, the highly competent counsel has cited the following judgments:- (i) Pune Municipal Corporation v. Harakchand Misirimal Solanki reported in 2014 (1) CTC 755 "Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), Section 24(2) -Land Acquisition At, 1894 (2 of 1894), Section 31 - Lapse of Land Acquisition Proceedings initiated under 1894 Act by virtue of Section 24(2) of RCTE Act 2013 - Acquisition Proceedings were initiated under 1894 Act and Award was passed - Landowners filed writ petition challenging Acquisition on ground that Award was made more than five years prior to commencement of 2013 Act and no compensation has been paid to owners nor amount of Compensation has been deposited in Court - Section 24 (2) of 2013 Act, contemplates that where an award has been made five years or more prior to commencement of 2013 Act, but physical possession of land has not been taken or compensation has not been paid, such acquisition proceedings still stand lapsed -Award was made on 31.01.2008 and compensation amount was deposited in Government Treasury, since landowners did not receive compensation - Expression "compensation has not been paid" occurred in 2013 Act - Compensation shall be regarded as "paid" if Compensation has been offered to person interested and such compensation has been deposited in Court -Mere deposit of compensation amount in Government Treasury is of no avail and Land Acquisition proceedings deemed to have lapsed for non-compliance of Section 24(2) of 2013 Act." (ii) Sudha & Others Versus The Government of Tamil Nadu & Others. "(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." 10. The highly competent Government Advocate, Mr.V.Shanmugasundar, appearing for the first and third respondents has submitted that as per the Government Order issued by the first respondent, the third respondent herein had initiated Land Acquisition Proceedings under the Act 1894 for acquiring the petitioner's land and the lands of other private individuals for forming of Neighbourhood Scheme in the Hosur Village, on 30.01.1991. After notification and subsequent formalities being observed by the third respondent herein, the land had been acquired without any lapse or shortcomings in the proceedings. Thereafter, the award No.2 of 1994 had been passed on 10.04.1994. Subsequently, the acquired land had been handed over to the second respondent herein, the Tamil Nadu Housing Board. The third respondent had assessed adequate compensation and passed the said award in the name of respective owners of the land and as such, it is evident that the compensation has been paid to the writ petitioner and possession was also taken over by the third respondent in turn and he had handed over the same to the Tamil Nadu Housing Board. Now, the Housing Board is vested with the said property. Therefore, the above writ petition is not maintainable. 11. The very competent Additional Advocate General Mr.S.Gomathinayagam appearing for the second respondent vehemently argued that the third respondent herein had acquired the land totally to an extent of 212.94 acres in Hosur Village for framing of Hosur Neighbourhood Scheme. Further, the third respondent had issued 4(1) notification under the Land Acquisition Act, 1894 and conducted 5A enquiry, wherein the landowners had participated. Further, the third respondent had issued 4(1) notification under the Land Acquisition Act, 1894 and conducted 5A enquiry, wherein the landowners had participated. After recording their statements, the declaration was made under Section 6 of the Act. Thereafter, an award was passed in Award No.2 of 1994, dated 10.04.1994. As per the Board's sanction order No.LA II (4)/27198/92, dated 16.03.1994, the compensation amount was deposited to the Land Acquisition Officer by way of cheque No.315327/28.03.1994. As such, the compensation amount was paid by the Board. Therefore, Section 24(2) of the New Act 30 of 2013 does not arise in the instant case. Further, the third respondent herein, viz., the Special Thasildar (Land Acquisition), had handed over the acquired land to the Tamil Nadu Housing Board, the second respondent herein. As such, the second respondent is in occupation till now. The writ petitioner had filed a writ petition on an earlier occasion, against the same respondents on the same cause of action i.e., notification for land acquisition and the said writ petition was dismissed. Subsequently, the writ petitioner has filed a Writ Appeal before this Court, which is pending for enquiry. The second respondent has further submitted that if a ground of attack was available in the first or second round of litigation and if the petitioner has not chosen to raise it at that time, the same contention cannot be raised in the next round of litigation as the same will be barred by principle of constructive resjudicata and hence, the above writ petition is not maintainable under law. Hence, the highly competent Additional Advocate General entreats the Court to dismiss the above writ petition. 12. From the above discussion in the instant case, the following issues which have to be decided are as follows:- (A) Whether the writ petitioner is in possession of the land till now or whether the second respondent / Tamil Nadu Housing Board is in possession of the land at present? (B) Whether the compensation amount was paid to the landowner / writ petitioner? If the compensation was paid, what is the quantum of compensation and mode of payment? 13. This Court is of the view that:- (i) There is no documentary proof regarding the quantum of compensation and mode of payment and date of payment in the name of the landowner. If the compensation was paid, what is the quantum of compensation and mode of payment? 13. This Court is of the view that:- (i) There is no documentary proof regarding the quantum of compensation and mode of payment and date of payment in the name of the landowner. The counter statement of the second respondent does not clearly indicate or substantiate payment of compensation allegedly made in favour of the writ petitioner. However, it is seen that the Tamil Nadu Housing Board had passed sanctioning order for depositing the award amount and the same was deposited in favour of the Land Acquisition Officer / Special Thasildar by way of sanction order No.LA II (4)/27198/92, dated 16.03.1994 vide cheque No.315327/28.03.1994. However, there is no authenticated record available to show that the compensation amount was paid to the petitioner. (ii) The writ petitioner has filed an earlier writ petition and challenged the notification for acquiring the land and the same was dismissed by this Court and the aggrieved petitioner has filed a writ appeal, which is pending. The said proceedings had been initiated under the Old Act, viz., Land Acquisition Act 1894. The present writ petition has been filed under the New Act 30 of 2013 and a different relief has been prayed for and the same relief was not sought in the earlier writ petition. The principles of resjudicata is only applicable to the case, wherein the parties are the same, and the same relief has been sought for the same cause of action and before the same forum. In the instant case the relief is varied as it is being claimed under the New Act i.e., 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 i.e, the Central Act 30 of 2013. (iii) The Village Administrative Officer had issued a possession certificate stating that the writ petitioner and his brother are in possession and cultivating the said land till now. The said certificate is of vital importance since the property is situated in the village, wherein, the area, which is in dispute, is under his command and he is monitoring the same. 14. The said certificate is of vital importance since the property is situated in the village, wherein, the area, which is in dispute, is under his command and he is monitoring the same. 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 (iii), 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 in survey No.572/A and in Survey No.575 to an extent of 1.38.5 hectares in Hosur Village, Krishnagiri District, 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, i.e., the Central Act 30 of 2013. As such, the petitioner's lands are discharged from the respondents acquisition proceedings. 15. In the result, the writ petition is allowed. There is no order as to costs.