Landowners sought a declaration that an industrial land acquisition had lapsed under Section 24(2) and restoration of possession. The Court denied relief under the new Act and dismissed the petition, holding the challenge to the completed acquisition not maintainable after approximately thirty years.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CAV ON : 22/12/2014 DATED : 18/01/2016
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
W.P.No.7103 of 2014 and
M.P.No.2 of 2014
1.B.Venkatesalu
2.B.Govindappa ... Petitioners
vs.
1.The Secretary to Government of Tamil Nadu,
Industries (MIG.2) Department,
Secretariat, Chennai-600 009.
2.The Special Tahsildar (LA),
SIPCOT Phase II, Hosur,
Krishnagiri District.
3.The Managing Director,
SIPCOT, 19A, Rukmani Lakshmipathi Road,
Egmore, Chennai-600 008.
4.M/s.Ashok Leyland Pvt. Ltd., Rep. by its Manager, Legal & Insurance, No.1, Sardar Patel Road, Guindy, Chennai-600 032. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus to call for the records of the first respondent in G.O.Ms.No.1339, Industries, dated 20.09.1982 to quash the same, as the above Land Acquisition Proceedings being lapsed in view of Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and consequently direct the respondents herein to hand over the possession of the petitioners land to an extent of 4.46 acres in S.No.583 in 105, Moranapalli Village in Hosur Taluk, Krishnagiri District.
For Petitioners : Mr.S.Sathiaseelan For Respondents : Mr.P.H.Aravind Pandian Additional Advocate General Assisted by Mr.M.S.Ramesh, A.G.P. for R1 Mr.Ramesh Venkatachalapathy for R2 & R3 Mr.Jeyesh B.Dolia and Mr.V.Kalyana Raman For M/s.Aiyar and Dolia for R4
O R D E R
The first petitioner has filed the affidavit on behalf of him and on behalf of his elder brother, who is the second petitioner herein. The first petitioner has submitted that the petitioners and their ancestors were doing cultivation in their agricultural properties situated in S.No.564/1, 574/2 to an extent of 2.17 acres lying on the western side of the Kelavarapalli Reservoir Project (KRP) Canal and in S.No.583, to an extent of 4.46 acres on the eastern side of KRP Canal, totally 6.63 acres, in Moranapalli Village, Hosur, Krishnagiri District from the year 1923 till 2012. The above agricultural ancestral properties in S.Nos.574/2 and 564/1 to an extent of 2.17 acres lying on the western side of the KRP Canal were acquired under G.O.Ms.No.570, Industries, dated 29.04.1982 invoking urgency provision of the 1894 Act when it was in the name of his late father, for the formation of Second Industrial Complex by the SIPCOT and another agricultural property in S.No.583 situate on the eastern side of the KRP Canal to an extent of 4.46 Acres was acquired under G.O.Ms.No.1339, Industries, dated 20.09.1982 for the above Industrial Project again under urgency provisions of the 1894 Act.
petitioners' land due to Canal separation. The first petitioner has further submitted that though Section 17 of the Land Acquisition Act, 1894 does not contemplate industrial purpose to invoke urgency provisions for acquiring lands and that too without any real and genuine urgency for acquiring the petitioners' agricultural lands solely for the purpose of setting up of industrial complex by the third respondent SIPCOT in the garb of public purpose, the first respondent Government acquired the land as if there was an urgency under Section 17(1) and (4)of the Land Acquisition Act, 1894 in the year 1982. But, later on, without developing any Industrial Complex in the acquired land, those lands were transferred to the fourth respondent private company in the year 1992. The first petitioner has further submitted that though as per G.O.Ms.No.1702 (Industries) dated 16.12.1980 permission was obtained to acquire the land for the purpose of Second Industrial Complex at Mornapalli Village in the year 1980 itself, the Land Acquisition notification in G.O.Ms.No.1339 (Industries) dated 20.09.1982 was issued invoking urgency provisions of the Land Acquisition Act only on 06.10.1982. Therefore, the above acquisition suffers from two years prenotification delay while invoking urgency provisions.
already only with an intention to thwart the prayer made in this writ petition.
"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
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 SubSection (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."
In view of the above provisions of the 2013 Act, purportedly where an Award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies is satisfied, viz., (i) physical possession of the land has not been taken or (ii) the compensation has not been paid, such acquisition proceedings shall be deemed to have lapsed. The first petitioner has further submitted that in the case on hand though the petitioners were called upon to participate in the award proceedings by the second respondent herein, the second respondent failed to communicate the award of compensation dated 26.09.1984 and interest on award dated 16.03.1985 to the petitioners in respect of their land in S.No.583. When the petitioners herein approached the first and second respondents for award of compensation at a later point of time, they had not properly informed to the petitioners about where the amount is being deposited, but only after the introduction of RTI Act, 2005 in 2006 in the year 2010 and 2011, the petitioners were informed by the second respondent on the petitioners' RTI applications that the Land Acquisition Award made in No.17/84, dated 29.09.1984 for a sum of Rs.13,883.60 has been deposited in the revenue account of Sub-Treasury, Hosur vide Challan No.459 on 13.12.1984. The above information was furnished to the petitioners by the second respondent vide letters dated 24.05.2010, 16.09.2010 and 16.03.2011. In the above circumstances, Section 31 of the 1894 Act sets out how the compensation has to be paid as below:-
"31. Payment of compensation or deposit of the same in Court:(1) On making an Award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested, entitled
thereto, according to the Award and shall pay to them unless prevented by someone or more of the contingencies mentioned in the next sub section.
(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of compensation in the Court to which a reference under Section 18 would be submitted."
As the above provisions if due to any reason or contingencies contemplated in Section 31(2) of the 1894 Act, the Collector is prevented from making payment of compensation to the persons interested who are entitled to compensation, then the Collector is required to deposit the compensation in the Court to which reference under Section 18 may be made.
activity and the petitioners cannot make any claim and hold the unlawful activity as a privilege for any claim. Language of Section 17 of the Land Acquisition Act reads as follows:-
"In case of urgency whenever the appropriate Government directs, the collector through no such award has been made may on the expiration of 15 days from the publication of the notice mentioned in Section 9 Sub Section (1) take possession of any land needed for public purpose. Such land shall there upon vest absolutely in the Government free from all encumbrances."
The second respondent has further submitted that as the Government felt that the land in S.No.583 and other land was required urgently to expand SIPCOT in Hosur Taluk, it was acquired under urgency provisions. The petitioners traced flimsy ground that the land in S.No.583 was not developed before allotment. The petitioners cannot find any fault in the process of acquisition after possession was handed over and the acquisition had been completed in all respects as per law. The second respondent has further submitted that the Land Acquisition Proceedings requires administrative sanction of the Government. It was issued in the year 1980 vide G.O.Ms.No.1702 (Industries) dated 16.12.1980. Notification under Section 4(1) and draft declaration under Section 6 and draft direction under Section 7 of the Land Acquisition Act were published on 06.10.1982 and after observing the formalities, the possession of the land covered under above notification were handed over to SIPCOT on 20.11.1982, in view of the urgency. The second respondent has further submitted that the petitioners' father Bodiappa filed writ petitions before this Court in W.P.Nos.12272 and 12273 of 1984 praying to re-convey. These writ petitions were dismissed on 07.06.1994 with a direction that "in case any such representation is made, their appropriate authority shall consider the same in accordance with law. The acquired land was handed over to SIPCOT on 20.11.1982 and the SIPCOT allotted the land to M/s.Ashok Leyland Ltd. The said Bodiappa was informed that the acquired land was allotted to M/s.Ashok Leyland Ltd and it cannot be re-conveyed. Earlier the petitioners father made several petitions repeating the same story. After his demise, the present petitioners are doing the same job.
(ii) Sludge drying shed waste water treatment plant
(iii) Building
(iv) Dry solid waste packing in drums
Therefore, the petitioners contention that the land remains unutilized is not correct. More, the word unutilized can connect only to the land owner and the applying body and that purpose was served. M/s.Ashok Leyland Ltd got allotment from SIIPCOT as per the available industrial guidelines. The petitioners cannot enter into the acquired land as all their interest were terminated. The lands were declared as free from encumbrances by the said award No.17/84, dated 26.09.1984. The second respondent has further submitted that the petitioners were misguided by the Real Estate Brokers to pour a number of petitions. After acquisition, the land was handed over to SIPCOT. SIPCOT in turn allotted the land to M/s.Ashok Leyland Ltd., The question of unused land does not arise. A portion kept vacant as per DTCP or PCB norms does not mean it was unutilized and it was properly replied to by the petitioners father as per the direction of this Court. All the efforts taken by the District Administration to explain to the petitioners that the acquired land was already put into use and the same cannot be recovered, is in vain.
measure the concluded proceedings. The award was made in the year 1982. Almost 32 years are over.
manufacturing of more than 50,000 vehicles. As per the Pollution Control norms, certain areas of lands have been earmarked to be kept vacant during manufacturing process and for parking, testing and runway for the vehicles. The fourth respondent has to maintain certain area as vacant space for the above purposes. These are all technical details of the fourth respondent and the petitioners cannot presume that the lands which is kept vacant has been unutilized.
W.P.No.34702 of 2005 requesting to reconvey his land. This Court, in its order dated 28.10.2005 directed the respondents therein (Secretary to Government, Industries Department, SIPCOT, Special Tahsildar (LA), Hosur, the Management of Ashok Leyland Hosur) to consider the petitioner's request and pass orders on merits and in accordance with law. The Special Tahildar (LA), SIPCOT, Hosur in his proceedings dated 20.01.2006 stated that it is not possible to re-convey the land acquired from the petitioner according to law and after handing over the possession of the land to the applying body. The third respondent has further submitted that the petitioners herein being the legal-heirs of Bodiappa have filed another writ petition in W.P.No.10751 of 2012 before this Court alleging that their lands were not utilized and hence, they wanted reconveyance of their land under Section 48B. This Court, by its order dated 18.04.2012 was not inclined to go into the merits of the claim except to direct the Government to consider the claim of the petitioners in terms of the Act. The Government communicated vide letter No.8511/MIG 2/2012-2, dated 27.08.2012 to the petitioners herein that since the lands have been utilized for the purpose for which it was acquired, the request of the petitioners for reconveying the land cannot be complied with. The third respondent has further submitted that the decision of the Government has already been communicated to the petitioners and the acquiring / requisitioning body i.e., this respondent has utilized the lands acquired and allotted it to Industries.
Government Order dated 20.09.1982 as the Land Acquisition Proceedings being lapsed in view of Section 24(2) of Act 30 of 2013.
W.P.No.5263 of 2013 has been filed to quash the Government Order dated 20.09.1982 and to hand over the possession of their land. The present writ petition has been filed to quash the said Government Order dated 20.09.1982 as the Land Acquisition Proceedings being lapsed in view of Section 24(2) of Act 30 of 2013. The fourth respondent has further submitted that W.P.No.5263 of 2013 was filed on the basis that urgency provision cannot be invoked for the purpose of acquiring land for industrial purpose. The fourth respondent has further submitted that filing the present writ petition amounts to giving up of the relief sought for in W.P.No.5263 of 2013. The fourth respondent has further submitted that relief sought for in the writ petition is hit by principles of res judicata and the petitioners cannot maintain two separate writ petitions for quashing the Government Order dated 20.09.1982. On these grounds alone, the writ petition is liable to be dismissed in limini.
respondent has further submitted that the petitioners cannot place reliance in Act 30 of 2013 for the reason that the Award in respect of the land in question was passed under Section 11 of the Land Acquisition Act, 1894 as early as on 26.09.1984, Act 30 of 2013 cannot be pressed into operation by virtue of provisions of Section 24(1)(b) of the Act 30 of 2013. The fourth respondent has further submitted that since the provisions of Section 24(1) of Act 30 of 2013 itself is not applicable to the facts of the present case on hand, provisions of Section 24(2) of the Act cannot come to the aid of the petitioners. Thus, Act 30 of 2013 is not applicable to the facts of the case.
under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed. Therefore, the provisions of Section 24(2) of the Act 30 of 2013 is not applicable to the facts of the present case. The question of applicability of Section 31 of the Act would arise only if the case of the petitioners falls under Section 24(2) of the Act. In view of non-applicability of Section 24(2), the question of payment of compensation under Section 31 does not arise.
same has become final. Award was also passed during the year 1984 determining the compensation payable to the petitioners' father in respect of the lands acquired. The record would reveal that despite service of notice under Section 9 of the Land Acquisition Act, 1894, the petitioners' father did not attend the award enquiry and the proceedings relating thereto has also become final.
(a) Award under Section 11 of the Land Acquisition Act, 1894 has been made five years or more prior to the commence of 2013 Act,
(b) But compensation has not been paid in the said proceedings and
(c) Possession of the land has not been taken in the manner known to law based on the interpretation given by the Hon'ble Supreme Court and this Court.
drafting panchnama in the presence of panchas (villages) would be tantamount to illegal or unlawful possession. The petitioners have further submitted that as per the law declared by the Hon'ble Division Bench of this Court in 1978 (91) LW 80 pr.27-30 and (2005) 3 LW 351 pr. 27, the instructions contained in Board Standing Order 90 were not issued under Section 55 of the Land Acquisition Act, 1894 the BSOs have no statutory force and held that such BSO cannot ignore the statutory requirement prescribed under Section 31(2) of the Land Acquisition Act, 1894.
"No company for which any land is acquired under this part shall be entitled to transfer the said land or any part thereof by sale, mortgage, gift, lease or otherwise except with previous sanction of the appropriate Government".
As per sub-section (2) of Section 44-A if any company transferred in contravention of Sub-Section(1), the Government may, by order, declare the transfer to be null and void and, on such declaration, the land shall, as penalty, be forfeited to, and vest in, the Government in Revenue Department free from all encumbrances. The above legal position being affirmed by this Court in (2013) 5 CTC 706 and further held that any transfer made in violation of Section 44-A of 1894 Act is invalid. As per the counter affidavit filed by the fourth respondent Company there is previous sanction obtained from the appropriate Government, the respondent herein, and therefore, the mortgage of acquired land is illegal. Consequently, all the lands mortgaged are liable to be forfeited by the Government by declaring such mortgage as null and void as penalty. Therefore, that is not a ground to attack the writ petition seeking relief under Section 24(2) of 2013 Act.
lands has also not been taken from them. Besides, the learned counsel has also filed a common written submission and disclosed the factual current position and legal position of the case and cited judgments in support of his contentions.
been communicated to the petitioners as per Section 12(2) of the Act by registered post with acknowledgment due. After acquisition, the second respondent had handed it over to the third respondent, who in turn allotted the subject lands to the fourth respondent herein, during 1992, for industrial purpose. As such, the physical possession is under the care and maintenance of the fourth respondent and he is utilizing the same for industrial purpose. Hence, for all these reasons, the learned counsel has prayed for dismissal of the writ petition.
Assistant Registrar(CO)
//True Copy//
Sub Assistant Registrar
To:
1.The Secretary to Government of Tamil Nadu, Industries (MIG.2) Department, Secretariat, Chennai-600 009.
W.P.No.7103 of 2014
and
M.P.No.2 of 2014
ad(CO)
srg(09/02/2016)
2 issues framed by the court
Were the petitioners entitled to a declaration that the acquisition had lapsed under Section 24(2) of Act 30 of 2013?
Was the challenge to the completed acquisition maintainable after approximately thirty years?
1 provisions across 1 enactments
B.Venkatesalu
B.Govindappa
The Secretary to Government of Tamil Nadu, Industries (MIG.2) Department
The Special Tahsildar (LA), SIPCOT Phase II, Hosur
The Managing Director, SIPCOT
M/s.Ashok Leyland Pvt. Ltd.
C.S.KARNAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
