Allowed

Tmt.Rojavathy v. the Principal Secretary to

Madras HC3 Sept 2014WP/12259/2014

Case brief

AI extract

What is this about?

High Court quashed an old land acquisition award under Section 24(2) of the 2013 Land Acquisition Act because the compensation was not paid and physical possession had not been taken, allowing the petitioner to regain possession.

What did the court decide?

Award No.2 of 1994 dated 08.04.1994 is quashed in respect of the petitioner's land, and the land is discharged from acquisition proceedings.

Tmt.Rojavathy Vs the Principal Secretary to — Land Acquisition | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 03 / 09 /2014

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CORAM

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THE HONOURABLE MR.JUSTICE C.S.KARNAN

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W.P.No.12259 of 2014 & M.P.No.2 of 2014

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Tmt.Rojavathy ... Petitioner
Vs.
1.The Principal Secretary to the Government,
Housing and Urban Development Department,
Fort St. George,
Chennai - 600 009.
3.The Special Thasildar,
(Land Acquisition), Housing Scheme,
Hosur, Krishnagiri District.
2.The Managing Director,
The Tamil Nadu Housing Board,
493, Anna Salai,
Nandanam, Chennai - 35. ... Respondents

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PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, to call for the records relating to Award No.2/1994, dated 08.04.1994, passed by the second respondent in so far as the petitioner's land is concerned in S.No.571/1B2 in Hosur Village, Hosur Taluk, Krishnagiri District to an extent of 0.57.0 hectare and quash the same and consequently, direct the respondents to put the petitioner into possession of the property within a time frame to be stipulated by this Court.

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For Petitioner : Mr.U.M.Ravichandran For Mr.Durai Gunasekaran For Respondents : Mr.V.Shanmuga Sundar Government Advocate for R1 and R2 Mr.S.Gomathinayagam

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Additional Advocate General for R3

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Assisted by Mr.V.Anandhamoorthy

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https://hcservices.ecourts.gov.in/hcservices/

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O R D E R

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The short facts of the case are as follows:-

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The petitioner submits that his father Mr.T.Rajagopal Naidu owned lands at Survey No.571/1-B2 in Hosur Village, Krishnagiri District to an extent of 0.57 Hectare. Out of this, his father donated 25 cents of land for the construction of "Sree Sathya Sai Baba Temple and the same is built and worshipped by huge congregation of devotees. In the remaining lands, the petitioner's father got permission in the year 1989 for running a semi permanent theatre in the name of "Saravana Thirai Arangam" and the said theatre is running peacefully. The petitioner further submitted that the first respondent issued notification under Section 4(1) of the Land Acquisition Act by way of G.O.Ms.No.137, Housing and Urban Development Department, dated 30.01.1991, published in Government Gazetee dated 20.02.1991, stating that the lands are required for construction of dwelling houses in a compact block by the third respondent.

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The petitioner further submits that his father/Mr.T.Rajagopal Naidu Challenged the said notification by way of writ petition in W.P.No.11715 of 1991 before this Court. While the writ petition was pending before this Court, the petitioner's father expired on 10.12.1999 leaving behind two legal-heirs, viz., the petitioner and her brother R.Raveendran. The petitioner's brother was brought on record in the said writ petition. This Court, by its order dated 16.02.2001, dismissed the above writ petition and gave the liberty to the petitioner to make representation to the Government for deletion of the subject land from acquisition and directed the Government / respondents to consider and pass orders within a period of three months, after such representation was made by the petitioner. The petitioner's brother has made a representation to the first respondent as per the Court order and the same was rejected by the first respondent on 27.07.2005, stating that the land in question is essentially required for Tamil Nadu Housing Board and there is no possibility of deletion from acquisition proceedings.

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The petitioner further submits that the petitioner's brother had filed a writ petition in W.P.No.33542 of 2005 before this Court, challenging the rejection order passed by the first respondent, dated 27.07.2005 and this Court, by its order dated 11.02.2006 has dismissed the above said writ petition. The first respondent for the very similar scheme exempted the Balasubramaniya Touring Theatre Land and Vinayaka Touring Theatre lands. But, the benefits were not extended to the petitioner's land and further there exists a primary school called " Sai Geethanjali" in the acquired lands. The petitioner

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further submits that the acquisition proceedings were initiated in the year 1991 and the award was passed on 08.04.1994 by the second respondent vide Award No.2 of 1994. But till date, the compensation was not paid to the landowners and not deposited in the Court and the physical possession of the property which was acquired through Land Acquisition are with them. The petitioner further submits that the petitioner's son filed a petition under the Right to Information Act and information was given by the second respondent dated 28.03.2014 which reveals that the second respondent has not taken possession of the land and the compensation amount is in Sub Treasury, Hosur. Further there is no record with regard to compensation deposited in the Court. All this would show that the physical possession of the property of the subject land is with them and no compensation has been paid to the respective landowners and the acquired lands are vested with the respective landowners.

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The petitioner submits that the respondents are duty bound officials as per the Land Acquisition Act to deposit the entire compensation amount before the competent Court. But, they have not chosen to deposit the same till date and this made the acquisition proceedings to lapse. Since the award has not been deposited before the competent Court, this would make the acquisition proceedings lapsed and the award itself nonest in law. The petitioner further submits that the respondents have simply flouted the provisions of the Act into the winds and without taking physical possession, and admitting that the possession is with the legal-heirs of the said T.Rajagopal Naidu, they cannot take a stand that the lands are required for the third respondent. The petitioner further submits that the third respondent had already formed the scheme and implemented the scheme and sold away the same. So as of now, the scheme is over. The requirement of the petitioner's land for scheme is an empty reason invented by the respondents to drive away the petitioner from the property and this would show that there is non-application of mind by the respondents.

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The petitioner further submits that in view of the provision under the Central Act of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement, 2013, non-payment of the award amount to the original landowners is a vitiated one. Hence, the petitioner has filed the above writ petition to quash the award in Award No.2/1994, dated 08.04.1994, passed by the second respondent in so far as the petitioner's land is concerned in S.No.571/1B2 in Hosur Village, Hosur Taluk, Krishnagiri District to an extent of 0.57.0 hectare and for a direction to the respondents to put the petitioner into possession of the property within a time frame to be stipulated by this Court.

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The respondents have not filed any counter affidavit. Hence, this Court is constrained to pass final orders on the basis of the available records.

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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 and constructing of dwelling houses in a compact block by the third respondent / Housing Board. After Acquisition, the respondents have neither paid the compensation amount to the landowners nor taken the acquired land in their possession for their purpose. Further, the respondents had passed a common award on 08.04.1994 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 land acquisition proceedings had been initiated in the year 1991 for construction of dwelling houses in a compact block by the third respondent, but 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. 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

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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 noncompliance of Section 24(2) of 2013 Act."

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(ii) Sudha & Others Versus The Government of Tamil Nadu & Others reported in CDJ 2014 MHC 1895

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"(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. 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.

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(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.

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(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.

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(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.

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(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. 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."

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The highly competent Government Advocate, Mr.V.Shanmugasundar, appearing for the first and second respondents has submitted that as per the Government Order issued by the first respondent, the second 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 construction of dwelling houses in a compact block by the third respondent / Housing Board, on 30.01.1991. After notification and subsequent formalities being observed by the second 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 08.04.1994. Subsequently, the acquired land had been handed over to the third respondent herein, the Tamil Nadu Housing Board. The second respondent had assessed adequate compensation and passed the said award in the name of respective owners of the land and the compensation amount has been paid to the writ petitioner and possession was also taken over by the second respondent, who in turn, had handed over the same to the Tamil

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Nadu Housing Board. Now, the Housing Board is vested with the said property. Therefore, the above writ petition is not maintainable.

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The very competent Additional Advocate General Mr.S.Gomathinayagam appearing for the third respondent vehemently argued that the second respondent herein had acquired the land in Hosur for construction of dwelling houses by this respondent. Further, the second 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 08.04.1994. Therefore, Section 24(2) of the New Act 30 of 2013 does not arise in the instant case. Further, the second respondent herein, viz., the Special Thasildar (Land Acquisition), had handed over the acquired land to the Tamil Nadu Housing Board, the third respondent herein. As such, the third 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. The third 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.

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From the above discussion in the instant case, the following issues which have to be decided are as follows:-

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(A) Whether the writ petitioner is in possession of the land till now or whether the third respondent / Tamil Nadu Housing Board is in possession of the land at present?

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(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?

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This Court is of the view that:-

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(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. Further, it was contended by the respondents/Government that all legal formalities were followed for acquiring the said land and award was passed. But, as of now, the petitioner is in physical possession and enjoyment of the same.

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(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. 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.

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On considering the facts and current position of the case and arguments advanced by the learned counsels on all sides and this Court's view listed above as (i) and (ii), this Court allows the above writ petition. Consequently, the award No.2 of 1994, dated 08.04.1994, passed by the second respondent in so far as the petitioner's land is concerned in S.No.571/1B2 in Hosur Village, Hosur Taluk, Krishnagiri District to an extent of 0.57.0 hectare, is hereby quashed. As such, the petitioner's lands are discharged from the respondents acquisition proceedings.

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