Allowed

Vikas Golecha v. the Secy. to Govt.,.

Madras HC18 Sept 2014WP/12771/2008

Case brief

AI extract

What is this about?

High Court allowed a writ petition seeking quashing of a government order and directed withdrawal of land acquisition proceedings. The court held that using the General Land Acquisition Act instead of a specific act for tribal welfare vitiated the process, harming innocent purchasers.

What did the court decide?

Quashing of G.O.M.s.(3 pa)No.17 dated 02.04.2008 and direction to withdraw acquisition of land under Section 48(1) of the Land Acquisition Act, 1894.

Vikas Golecha Vs the Secy. to Govt.,. — Land Acquisition | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 18/09/2014

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CORAM

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THE HONOURABLE MR.JUSTICE C.S.KARNAN

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W.P.No.12771 of 2008

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1.Vikas Golecha 2.Paras Devi Golecha 3.Lalita Duggar ...Petitioners

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Vs.
1. The Secretary to Government,
Adi Dravidar and Tribal Welfare Department,
Fort St. George, Chennai - 600 009.
2. The Special Commissioner and
Commissioner of Land Administration,
Adi Dravidar and Tribal Welfare Department,
Ezhilagam, Chennai - 600 005.

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The Director, Adi Dravidar and Tribal Welfare Department, Ezhilagam, Chepauk, Chennai - 600 005. 4. The District Collector, Coimbatore District, Coimbatore.

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The Special Tahsildar, (LA), Adi Dravidar and Tribal Welfare Department, Coimbatore Taluk, Coimbatore. ...Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, to call for the records pertaining to G.O.M.s.(3 pa)No.17, dated 02.04.2008 passed by the first respondent and quash the same and direct the respondents to withdraw from the acquisition of the land owned by the petitioners in S.F.No.185 (Part 1 to 3), Kavundampalayam Village, Coimbatore North Taluk, Coimbatore District measuring an extent of 82 cents under Section 48(1) of the Land Acquisition Act, 1894.

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

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For Petitioner s : Mr.A.Balakrishnan For Mr.R.Vijayan For Respondents : Mr.T.N.Rajagopalan Special Government Pleader

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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 first petitioner submits that he has filed the affidavit on behalf of second and third petitioners herein who are none other than mother and sister stating that they have purchased a land in S.F.No.185/3 (part 1 to 3) measuring an extent of 82 cents in Kavundampalayam Village, Coimbatore North Taluk, Coimbatore District, vide registered sale deeds from their vendors, S.Nagamani, B.Kalaivani, Muthuswamy and K.K.Palaniappan for a valuable consideration. The petitioners state that after purchase of the aforesaid lands, they came to know that a notification under Section 4(1) of the Land Acquisition Act, 1894 was issued by the first respondent in the Government Order in G.O.Ms.No.159, Adi Dravidar & Tribal Welfare Department dated 26.09.1988 for acquiring land in S.F.Nos.185/1, 185/2 and 185/3 in Kavundampalayam Village, Coimbatore North Taluk, Coimbatore District and that Section 5A enquiry was conducted.

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The petitioners additionally added that the objections raised by the landowners were overruled and Section 6 declaration was issued by the first respondent in G.O.Ms.No.2227, Adi Dravidar & Tribal Welfare Department dated 22.11.1989. Thereafter award enquiry was conducted and the award was passed in the proceedings Award No.9/91-92 in Ref.No.1405/89A, dated 21.11.1991 by the proceedings of the fifth respondent. In the said Land Acquisition Proceedings, the land in S.F.No.185/2 was deleted from Land Acquisition Proceedings on the basis of the recommendations of the Additional Collector of Coimbatore. Further, the land in S.F.No.185/3 (part) in D.T.T.P.No.LP/R (CPN) 388/86 and the land adjoining the petitioners land in S.F.No.185/3 (part 1 to 3) was also released from Land Acquisition. The petitioners purchased a land in S.F.No.185/3 (part 1) measuring 13925 sq.ft. in Kavundampalayam Village, Coimbatore North Taluk, Coimbatore District vide registered sale deeds from his vendors S.Nagamani, B.Kalaivani, Muthuswamy and K.K.Palaniappan for a valuable consideration. The nearby land in S.F.No.185/3 (part 2 and 3) was purchased by the second and third petitioners, who are residing in Coimbatore, from their vendors S.Nagamani, B.Kalaivani, Muthuswamy, K.K.Palaniappan and Pushpavathi Prabhu vide registered sale deeds bearing document Nos.915/95, 916/95 and 1052/95 registered on the file of District Registrar, Coimbatore, for https://hcservices.ecourts.gov.in/hcservices/ personal use.

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The petitioners further added that the said lands in S.F.Nos.185/3 (part 1 to 3) were fenced by them and they are in possession and enjoyment right from the date of purchase. The aforesaid lands were purchased by the petitioners for the purpose of establishing their business by constructing a godown and a residential house. Due to shortage of funds, the petitioners could not start the work of construction of the godown and the residential house immediately after the purchase of the lands. Only when the petitioners began the work of construction of the godown and the residential house, they came to know that the land in S.F.No.185/3 (part 1 to 3) is under Land Acquisition Proceedings to build houses for the house-less Adi Dravidars. The petitioners further submit that after the purchase of the aforesaid lands, the petitioners came to know that the Government had initiated acquisition proceedings in respect of the entire lands and award was also passed. The petitioners state that the first petitioner sent a representation dated 07.10.2004 to all the respondents requiring them to consider the case and withdraw acquisition of the land in S.F.No.185/3 (part 1 to 3) Kavundampalayam Village, Coimbatore, North Taluk, Coimbatore District, as the land is required for business and personal use.

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The petitioners further submit that no reply was received from the respondents on the aforesaid representation. Hence, the petitioners filed W.P.No.906 of 2005 for directing the respondents to withdraw acquisition under Section 48B of Land Acquisition Act. This Court, directed the respondents to pass orders within 8 weeks. The first respondent passed an order and rejected the said representation. Aggrieved by the same, the petitioners have filed the present writ petition.

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The respondents have not filed any counter statement in the above writ petition.

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The highly competent counsel Mr.A.Balakrishnan appearing for the petitioner submits that the petitioners have purchased a land in the year 1995 under a registered sale deed after paying the full sale consideration to the erstwhile vendors. Thereafter, they came to start the construction work over the said lands and at this point of time, they came to know that the first respondent, viz., the Secretary to Adi Dravidar and Welfare Department had issued G.O.Ms.No.159, dated 26.09.1988, for acquiring the petitioners land comprised in S.F.Nos.185/1, 185/2 and 185/3 to an extent of 82 cents for the purpose of providing residential houses for the house-less Adi Dravidars. After the notification under Section 4(1) of the Land Acquisition Act, 1894, the fifth respondent had conducted an enquiry under Section 5A of the Act, 1894. The erstwhile owner has raised objections for acquiring the said lands and the same was overruled by the fifth respondent and consequently, a declaration was passed under Section 6 of the Act under G.O.Ms.No.2227, on 22.11.1989 by the first https://hcservices.ecourts.gov.in/hcservices/ respondent, who is attached to Adi Dravidar Department. The highly

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competent counsel further pointed out that for acquiring the lands from the private individuals for the purpose of the house-less Adi Dravidars, the respondents ought to have initiated Land Acquisition Proceedings under the Special Act 1978 for Adi Dravidars. As such, the entire Acquisition Proceedings have become defunct.

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The highly competent counsel appearing for the petitioner further submits that the land in S.F.No.185/3 had been approved by the Director of Town and Country Planning in the year 1986 to lay out the said properties for the construction of houses. Hence, all the petitioners have purchased the said lands to an extent of 82 cents under three registered sale deeds after paying the entire sale consideration. As per the revenue records and encumbrance certificate, it reveals that the properties stand in the names of erstwhile owners at the time of purchasing the said property. As such, the erstwhile vendor was possessing marketable title deeds over the said land. Therefore, the sale deeds are valid under law. The Director of Country and Town Planning had approved the sale of the said land and accordingly, the approved plots were sold to various persons including the writ petitioners. Therefore, the small extent of land is not sufficient to execute the purpose of the respondents in order to provide residential houses to the Adi Dravida people. Further, the land in Survey No.185/2 was deleted from the Land Acquisition Proceedings on the basis of recommendation of the Additional Collector, Coimbatore District. Similarly, the petitioners are entitled to relief from the respondents as per the representation dated 07.10.2004, made by the first petitioner, but the same relief had not been granted to the petitioners. As such, the respondents Land Acquisition Proceedings are indiscriminate by nature, since the respondents treated the petitioners unequally.

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The highly competent counsel appearing for the petitioner further submits that the Sub Registrar, Gandhipuram had issued encumbrance certificate bearing No.555, dated 20.01.1995 for the period from 01.01.1982 to 19.01.1995 showing nil encumbrance. As per the respondents' Acquisition Proceedings, the award has been passed on 21.11.1991. Therefore, there is lapse on the side of the respondents in order to carry out the Acquisition Proceedings. Therefore, such a process which has shortcomings could not be operated against the petitioners' civil interest and rights. Further, as on date, the possession have not been taken by the respondents and the petitioners are in possession without any interference especially from the respondents herein. Therefore, the Land Acquisition Proceedings which has been done only through 'paper' cannot be operated over the said lands. Therefore, the petitioners are entitled to seek relief under Section 48(b) of the Land Acquisition Proceedings.

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The highly competent counsel appearing for the petitioner further submits that one Palanisamy's land measuring an https://hcservices.ecourts.gov.in/hcservices/ extent of 1.52 acres was also sought to be acquired, but, later on,

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the land was deleted from the Land Acquisition. Further, as on date, the said land had not been utilized by the respondents. The erstwhile owners have not received any compensation from the respondents. In support of his contentions, he has cited a judgment reported in (2014) 1 MLJ 874 (SC) [Pune Municipal Corporation v. Harakchand Misirimal Solanki]

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"(A) Property Laws - Land Acquisition - Lapse of proceedings - The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, Section 24(2) - Land Acquisition Act, 1894, Section 31- Lands of respondents acquired by appellant / Corporation under 1894 Act - Acquisition Proceedings challenged - High Court quashed acquisition proceedings and directed restoration of possession - Appellant / Corporation alleged that compensation amount was deposited in Government treasury and thus acquisition proceedings not lapsed landowners alleged that by virtue of Section 24(2) of 2013 Act, acquisition proceedings lapsed - Whether land acquisition proceedings lapsed with coming into force of Section 24(2) of 2013 Act - Held, 1894 Act being expropriatory legislation has to be strictly followed - Compensation awarded neither paid to landowners nor deposited in Court - Deposit of compensation amount in Government treasury not equivalent to compensation paid to landowners - Award made by the Land Acquisition Officer more than five years prior to commencement of 2013 Act - Under Section 24(2) of 2013 Act, land acquisition proceedings initiated under 1894 Act, by legal fiction, are deemed to have lapsed where award made five years or more prior to commencement of 2013 Act and possession not taken or compensation not paid - Land Acquisition Proceedings are to be deemed to have lapsed under Section 24(2) of 2013 Act - Appeal dismissed.

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(B) Interpretation of statutes - 'Compensation has not been paid" in Section 24(2) of the The Right to Fair Compensation Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Legisltaure did not intend to equate word :"paid" to "offered" or "tendered" - By use of word "paid", Parliament intend receipt of compensated by landowners / persons interested - Not appropriate to give literal construction to expression "paid" used in Section 24(2) - For purposes of Section 24(2), compensation to be regarded as "paid" if compensation offered to person interested and such compensation deposited in Court - compensation "paid" within meaning of Section 24(2) when Collector or Land Acquisition Officer discharged obligation and deposited amount of compensation in Court.

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Held: The Act 1894 being an expropriatory legislation has to be strictly followed. The award https://hcservices.ecourts.gov.in/hcservices/ pertaining to the subject land has been made by the

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Special Land Acquisition Officer more than five years prior to commencement of the Act 2013. It is also admitted position that compensation so awarded has neither been paid to the landowners / persons interested nor deposited in the Court. The deposit of compensation amount in the Government treasury is of no avail and cannot be held to be equivalent to compensation paid to the landowners / persons interested. This Court have, therefore, no hesitation in holding that the subject land acquisition proceedings shall be deemed to have lapsed under Section 24(2) of the Act 2013 Act."

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Hence, the highly competent counsel entreats the Court to allow the writ petition.

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The highly competent Special Government Pleader Mr.T.N.Rajagopalan appearing for the respondents submits that the respondents have initiated Land Acquisition Proceedings as per the Act 1894 and acquired the petitioners land to an extent of 82 cents in Survey Field No.185 (part 1 to 3) in Kavundampalayam Village, Coimbatore District for the purpose to provide houses for the house-less Adi Dravida people. The respondents had given notification under Section 4(1) of the Land Acquisition Act. Following the said notification, the enquiry was conducted under Section 5(A). Subsequently, Section 6 declaration was issued by the first respondent. Thereafter, an award dated 21.11.1991 was passed by the fifth respondent. At the time of enquiry conducted by the fifth respondent, the landowners had participated and their objections were recorded. Thereafter, a declaration and award was passed. As such, the respondents have strictly adhered to the Land Acquisition Proceedings. Therefore, there is no lacuna for acquiring the lands from the vendors. The Land Acquisition Proceedings had been initiated in the year 1988 and the same was completed in the year 1991. As such, the respondents have become owner of the properties. Thereafter, the writ petitioners have purchased the property in the year 1995 from the erstwhile vendors. Therefore, the said sale deed is not valid under law since at the time of alienation of the said land, the erstwhile owners did not possess marketable title deeds. Therefore, the petitioners claim had not been considered by the first respondent on the representation dated 07.10.2004 made by the first petitioner herein.

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The highly competent Special Government Pleader appearing for the respondents further submits that the fifth respondent i.e., Special Tahsildar is maintaining the said property. Further, the award amount had been deposited in the Sub Court, Coimbatore. The land had been acquired by the respondents for providing house sites to the poor Adi Dravida people as it was considered imperative. The registered sale deeds which had been obtained by the petitioners from the erstwhile owner is not https://hcservices.ecourts.gov.in/hcservices/ sustainable under law. Therefore, on the strength of invalid sale

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deed, the petitioners cannot claim any civil rights over the said lands. As per revenue records, the lands were standing in the name of the erstwhile owners. Therefore, the writ petitioners have no locus standi to file the above writ petition.

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The highly competent Special Government Pleader appearing for the respondents further submits that the writ petitioners had filed another writ petition in W.P.No.906 of 2005. After the said petition was disposed of, the above writ has been filed. Therefore, the purpose, for which the lands had been acquired by the respondents ie., to provide house sites to the poor Adi Dravida people, has been delayed. Hence, the highly competent Special Government Pleader entreats the Court to dismiss the writ petition since the acquired land is vested with the respondents and compensation amount has been deposited into Sub court, Coimbatore, in the name of the erstwhile owner. Therefore, the acquisition proceedings has to be executed further for the benefit of the Adi Dravida people. Hence, the highly Special Government Pleader entreats the Court to dismiss the above writ petiton.

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From the above discussions, this Court is of the view:-

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(i) The acquisition proceedings had been initiated in the year 1988 and the said proceedings had been completed in the year 1991. After completion of the said acquisition proceedings, the acquired land has neither been divided into house sites nor physical possession to the poor Adi Dravida, house-less people had been assigned till date. As such, around 25 years have elapsed and the purpose for which, it was acquired has not materialized.

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(ii) The said acquired land had been approved by the Director of Country and Town Planning in their proceeding in D.T.T.P.No.LP/R (CPN) 388/86. Therefore, at the time of initiating the Land Acquisition Proceedings by the respondents, the said lands have been plotted out for house construction. As per the sale deed, the writ petitioners have purchased to an extent of 82 cents for their residential needs for construction of dwellings and this is also an essential one.

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(iii) The encumbrance certificate bearing No.555, dated 20.09.1995 issued by the said Registrar, Gandhipuram, for the period from 01.01.1982 to 19.01.1995 shows no encumbrance. It clearly reveals that all the relevant documents pertaining to the acquired lands have not been mentioned in the name of the respondents upto 19.01.1995. The writ petitioners have relied upon the encumbrance certificate, which is a crucial document as it is issued by the Sub Registrar concerned, who is also an authorized officer attached to the Government. Therefore, the innocent purchasers should not be put into irreparable hardship.

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

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(iv) The compensation amount is still lying in the credit of Sub Court, Coimbatore and the same had not been received by the erstwhile owner or present owner / writ petitioners.

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(v) In the said Land Acquisition Proceedings, the land in S.F.No.185/2 was deleted from the Land Acquisition Proceedings on the basis of the recommendation of the Additional Collector of Coimbatore District. If similar relief is granted to the writ petitioners on their representation dated 07.10.2004, the discrimination would not have arisen. The respondents should have treated the petitioners herein on an equal footing, but this was not considered in the instant case. The Land Acquisition Proceedings had been initiated in the year 1988 as per G.O.Ms.No.159, under the Land Acquisition Act, 1894, for acquiring the petitioners land in order to provide house sites to the poor Adi Dravida house-less people. For acquiring the land for the Adi Dravida people, the State Government had enacted a Special Act 1978. Instead of that, the respondents had initiated Land Acquisition Proceedings under the Central Act, 1894, which is inappropriate. Therefore, the respondents Land Acquisition Proceedings have become vitiated.

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On considering the factual position of the case and arguments advanced by the highly competent counsels on either side and on perusing the typed set of papers and this Court's view listed as (i) to (v), this Court perforce allows the writ petition. Consequently, the Government Order in G.O.M.s.(3 pa)No.17, dated 02.04.2008 passed by the first respondent is quashed. Consequently, this Court directs the respondents to withdraw from the acquisition, the land owned by the petitioners in S.F.No.185 (Part 1 to 3), Kavundampalayam Village, Coimbatore North Taluk, Coimbatore District measuring an extent of 82 cents under Section 48(1) of the Land Acquisition Act, 1894.

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In the result, the above writ petition is allowed. There is no order as to costs.

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Sd/Asst. Registrar (CS-IV)

//True Copy//

Sub Asst. Registrar.

r n s

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

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The Secretary to Government,
Adi Dravidar and Tribal Welfare Department,
Fort St. George, Chennai - 600 009.
2. The Special Commissioner and
Commissioner of Land Administration,
Adi Dravidar and Tribal Welfare Department,
Ezhilagam, Chennai - 600 005.
3. The Director,
Adi Dravidar and Tribal Welfare Department,
Ezhilagam, Chepauk, Chennai - 600 005.
4. The District Collector,
Coimbatore District,
Coimbatore.
5. The Special Tahsildar, (LA),
Adi Dravidar and Tribal Welfare Department,
Coimbatore Taluk,
Coimbatore.
W.P.No.12771 of 2008
RV [CO]
PSI 13/10/2014

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

Vikas Golecha v. the Secy. to Govt.,.

Case brief

What is this about?

What did the court decide?

Vikas Golecha v. the Secy. to Govt.,.

Case brief

What is this about?

What did the court decide?

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