W.P. No. 23698 of 2014. Case: G. Thomas Devanandam and Ors. Vs The Government of Tamil Nadu and Ors.. High Court of Madras (India)
| Case Number | W.P. No. 23698 of 2014 |
| Counsel | For Appellant: M. Venkatachalapathy, Senior Counsel for M. Sriram, Advocate and For Respondents: M.S. Ramesh, Additional Government Pleader |
| Judges | C. S. Karnan, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XXI Rules 35, 36, 95, 96; Constitution of India - Article 226; General Clauses Act 1897 - Section 6; Land Acquisition Act, 1894 - Sections 11, 12(2), 16, 17(1), 17(3A), 18, 2, 31, 31(1), 31(2), 32, 33, 34, 4, 4(1), 47, 5A, 6, 9(1); Right to Fair Compensation and Transparency in Land Acquisition, ... |
| Citation | 2015 (1) CTC 443 |
| Judgement Date | October 20, 2014 |
| Court | High Court of Madras (India) |
Judgment:
C. S. Karnan, J.
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The short facts of the case are as follows:
The First Writ Petitioner submits that the Second and Third Petitioners are his brothers and fourth and Fifth Petitioners are his sisters and he filed this Writ Petition on behalf of other Petitioners and himself. He further submits that his father Late Ganesan was the owner of 2.61 acres of land comprised in Survey No. 605 of Mogappair Village, Saidapet Taluk, Thiruvallur District. The said land was subjected to Land Acquisition proceedings under the Land Acquisition Act, 1894, herein after called "the old Act" for the Housing Scheme sponsored by the Second Respondent, viz., the Managing Director, Tamil Nadu Housing Board. The Notification under Section 4(1) of the Land Acquisition Act, 1894 came to be issued on 23.10.1975, which was followed by a Declaration under Section 6 of the Act, dated 9.11.1978. An award came to be passed in Award No. 3/1984, dated 3.2.1984 under the old Act.
The First Petitioner additionally added that his father the Late Ganesan challenged the said Land Acquisition proceedings in W.P. No. 5444 of 1988 before this Court. The Division Bench of this Court was pleased to allow the said Writ Petition and thereby the entire Acquisition proceedings in respect of the subject land was quashed. The First Respondent herein, viz., the Secretary attached to the Housing and Urban Development Department had filed S.L.P.(C) No. 2524 of 1996 before the Hon'ble Supreme Court. When the case was pending before the Hon'ble Supreme Court, his father expired on 12.7.1994 and the Petitioners herein were brought on record as the sole Legal Heirs of the late Ganesan. By Order dated 8.10.1999 in Civil Appeal No. 5902 of 1999, the Hon'ble Supreme Court was pleased to allow the Appeal. While allowing the said Appeal, the Hon'ble Supreme Court observed that if the land is surrounded by the lands released from acquisition, then it remains open to the Petitioners to move before the Government and the Housing Board for releasing the land from the Acquisition proceedings.
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The First Petitioner further submits that a Writ Petition was filed in W.P. No. 22974 of 2010, before this Court seeking directions to the Respondents, to consider their representation for release of their land from acquisition in terms of the Order passed by the Hon'ble Supreme Court dated 8.10.1999 in Civil Appeal No. 5902 of 1999. By Order dated 14.12.2010, this Court was pleased to pass the following orders:
16. However, since it is the stand of the Respondents that the Scheme is under progress and they are seeking approval, which is pending with the CMDA, the Housing Board is directed to take steps to get appropriate Orders, from the CMDA, within a maximum period of six months from the date of receipt of a copy of this Order. In the event of the CMDA not granting the approval for utilizing that land in question for residential plots with car parking, then the request of the Petitioner has to be considered in terms of the Hon'ble Apex Court's Order dated 8.10.1999. In the event of the CMDA granting approval, question of re-conveyance does not arise. However, they cannot go on postpone this on one ground or another inventing new public purposes to reject the claim of the Petitioners in view of the Apex Court's especially in the case reported in Hari Ram & another v. State of Haryana, 2010 (2) CTC 336. Apart from this, when other adjoining lands have been released, the Petitioners alone cannot be singled out and different treatment cannot be extended to the Petitioners as in my opinion this will amount to clear discrimination in view of the above referred Hon'ble Apex Court's Judgment reported in Daystar Television Network Pvt. Ltd. v. Word of God Fellowship Inc., 2012 (2) CTC 332.
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The First Petitioner additionally added that the Respondents had not obtained the approval from the Chennai Metropolitan Development Authorities till date. The Respondents are not requiring the land for the purpose for which it was being acquired or for any other public purpose. Hence, the Petitioners have filed another Writ Petition in W.P. No. 23610 of 2012, seeking a Writ of Mandamus, thereby directing the Respondents for re-conveyance of land. However, by Order dated 16.12.2012, this Court was pleased to permit the Petitioners to withdraw the Writ Petition with liberty to move afresh if so desire.
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The First Petitioner further submits that till date, the Respondents did not implement any Schemes on this land. The land is in their possession and enjoyment. Though the Award No. 3 of 1984, came to be passed as early as on 3.2.1984, the Respondents did not take possession of the land from them till date. In fact, no Notice was issued under Section 12(2) of the Old Act, informing his father the late Ganesan or themselves regarding the passing of the Award. They were neither offered nor paid the Compensation amount by the Respondents in respect of their land. Till date, the Compensation offered in the Award dated 3.2.1984 has not been deposited before the Competent Civil Court by the Respondent. Thus, the Compensation amount is neither paid nor made available for the Petitioners to receive the Compensation by depositing the same before the Competent Civil Court. As such this is tantamount to a crucial failure of the issue.
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The First Petitioner further submits that in such circumstances, now the Government of India enacted a new Land Acquisition Act replacing the Old Act, 1894, viz., the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013), hereinafter called the New Act and the same came into effect from 1.1.2014. If the physical possession of the lands is not taken from the Landowners in respect of the proceeding initiated under the Old Act after the passing of the Award, as per Section 24(2) of the New Act, the entire Acquisition proceedings initiated under the Old Act shall be deemed to have been lapsed. Since the physical possession of the land is not taken from the Third Respondent herein after the passing of the Award on 3.2.1984, and as the possession of the land is still with them, the Respondents do not have any right to proceed under the Old Act, 1894, which has been repealed Section 24 of the New Act reads as follows:
24. 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.
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The First Petitioner additionally added that in view of the fact that the physical possession in respect to the subject land is not taken from them or from their father Late Ganesan and as the Compensation amount is not paid till date, they are entitled to seek a declaration since the entire land Acquisition proceedings initiated under the Old Act, 1894 is deemed to have lapsed in view of Section 24(2) of the New Act. Under the circumstances, the Petitioners approached this Court for declaration that the Land Acquisition proceedings which had been initiated under the Land Acquisition Act, 1894 has lapsed.
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The Second Respondent has filed the Counter Affidavit and resisted the Writ Petition. The Second Respondent submits that the Tamil Nadu Housing Board has proposed to implement the Housing Scheme in the Sub-Urban area of Chennai by acquiring the Patta lands in Mogappair Village for an extent of 513.82 acres. The 4(1) Notification was approved by the Government in G.O.Rt. No. 261, Housing & Urban Department, dated 23.10.1975 and the gist of the 4(1) Notification was published in the TNGG No. 44c, Supplement to Part II Section 2, dated 12.11.1975. The draft Declaration under Section 6 of the Land Acquisition Act, 1894 (Central Act 1 of 1894) was approved by the Government in G.O.(Ms) No. 1515, Housing and Urban Development Department, dated 9.11.1978. The gist of the Draft Declaration was published in the TNGG on 10.11.1978 and Award was passed. Mogappair West Scheme has been implemented during 1987 in the lands acquired in Mogappair Village. The land bearing S.F. No. 605 with an extent of 2.61 acres had also been acquired vide Award No. 3/1984, dated 3.2.1984. At the time of implementation of Mogappair West Scheme, it was not able to implement Housing Scheme in S. No. 605 along with other lands due to non-access ability. Besides, Thiru. A. Ganesan, father of the Petitioner filed W.P. No. 5444 of 1988 before this Court, challenging the acquisition for land in S. No. 605 of Mogappair Village. The above Writ Petition was allowed on 29.4.1991 by...
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