@JUDGMENTTAG-ORDER
M. Venugopal, J.@mdashThe Petitioners have preferred the instant Writ of Certiorarified Mandamus in calling for the records relating to the impugned orders passed by the First Respondent in Letter No. 30437/LA (1)/09 18 dated 18.10.2012 and to quash the same declaring the entire Land Acquisition Proceeding as non-est in the eye of law in so far as their lands in Survey No. 298/2 and 298/3 in Kodambakkam Village and pass appropriate consequential orders. The Summary of Writ Facts:
(i) According to the 1st Petitioner, the 2nd Petitioner is the wife of his deceased elder brother and the 3rd Petitioner is his son. An extent of 18.76 acres of lands in S. Nos. 298/1 to 6, 298/7A, 298/7B, 298/7C, 299/1A, 299/1B, 299/2, 299/3A, 299/3B, 299/3C, 299/4, 299/5, 343/1, 343/2, 343/3, and 344 is in Kodambakkam Village. Their lands are situated in Survey No. 298/2 and 298/3 measuring an extent of 0.67 cents. The land in S. No. 298/2 of Kodambakkam Village measuring an extent of 32 cents belongs to his father Murugappa Maistry. Ganasa Pandithar was a tenant under is father, who later on vacated the premises. Likewise, the land in Survey No. 298/3 measuring an extent of 35 cents belongs to his mother Murugammal.
(ii) The Notification u/s 4(1) of the Land Acquisition Act, 1894 was published in the Government Gazette dated 25.10.1961 for construction of houses for 111, Kodambakkam-Pudur Part II Neighbourhood Scheme. However, 17.72 acres out of 18.76 acres were withdrawn from the acquisition proceedings excluding the lands in Survey No. 289/1 to 3 measuring 1.04 acres as per withdrawal Notification approved in G.O. Ms. No. 1372, Industries, Labour and Co-operation dated 10.03.1964 and published in Tamil Nadu Government Gazette on 25.03.1964. Subsequently, a portion of the lands comprised in S. No. 298/1 was excluded. The rest of the lands comprised in S. No. 298/1 and their lands in S. No. 298/2 and 3 came up to the stage of Award, while the entire notified area measuring 17.72 acres out of 18.76 acres were withdrawn from acquisition even before the Draft Declaration was to be issued u/s 6 of the Land Acquisition Act, 1894.
(iii) His parents Murugappa Maistry and Murugammal projected several representations, (including the representation dated 10.08.1976) to the Board of Revenue requesting them to exclude S. Nos. 298/2 & 3 measuring an extent of 0.67 cents from acquisition proceedings, since housing accommodation for more than 10 family members were to be provided in the said land for their family members and that he was singled out and meted out with discriminatory treatment, while major extent of 17.72 acres out of 18.76 acres was withdrawn from the acquisition proceedings which was sought to be acquired as per Section 4(1) Notification dated 25.10.1961 from Kodambakkam Pudur Part II Neighbourhood Scheme, but G.O. Ms. No. 837 Housing dated 15.06.1976 the Government of Tamil Nadu had announced a policy decision that house site and village site etc. should be excluded from acquisition proceedings, the non exclusion of their land, which was house site belonging to their parents was a gross violation of the policy decision of the Government. Although there was a mention that the lands were wet lands, the fact remains that the aforesaid property was a house site and it was in their occupation and there were tenants in the said property could be seen from the Award notice.
(iv) The draft declaration for S. No. 298/1 to 3 was published in the Government Gazette on 05.02.1964. The Award No. 6/70 was passed on 28.03.1970. The award amount was not deposited into Court till date as mentioned in the Award and the possession of lands comprised in S. No. 298/2 & 3 measuring an extent of 0.67 cents was not taken till now as per Section 16 of the Act and his parents continued to be in possession of the lands.
(v) The representation of his parents in the year 1976 to the Board of Revenue was forwarded to the D.R.O., Kancheepuram, on 10.08.1976 calling for remarks regarding exclusion of their lands comprised in S. No. 298/2 & 3. The D.R.O. Kancheepuram in R.C. No. 179630/76 dated 02.09.1976 called for remarks from the Tahsildar, Land Acquisition, who submitted his report in R.C. No. 967/76C dated 17.11.1976 recommending for excluding the said lands comprised in S. No. 298/2 & 3 belonging to them from the from the acquisition proceedings. Though the Award was passed in respect of their lands bearing S. No. 298/2 & 3 in Award No. 6/70 on 28.03.1970, the compensation amount was not tendered u/s 31 of the Act nor was it deposited into Court u/s 30 and 31 of the Act till this day, Section 12(2) Notice. Further, the possession of the lands were not taken as per Section 16 of the L.A. Act, 1894. Therefore, the Award is a nullity and non est in the eye of law. The lands did not vest with the Government and the title and possession of the said lands are with them. Hence, they constructed new structures and shops in the said lands abutting 100 feet road after getting plan for construction of buildings, sanctioned by the CMDA. The said buildings were assessed to house tax. The old buildings situated in the said lands were also assessed by the Panchayat Board prior to 1970.
(vi) His father made a representation on 22.01.1979 to the 3rd Respondent/The Managing Director, Tamil Nadu Housing Board, Chennai requesting him to exclude the land S. No. 298/2 & 3 belonging to him and his wife from acquisition proceedings. The Chairman, State Housing Board, Nandanam, Madras in his Lr. No. 119214/1A, 1-3 dated 29.07.1979 addressed to the Housing Department, Government of Tamil Nadu informed that the land in S. No. 298/2 and 298/3 measuring an extent of 0.67 cents of Kodambakkam Village, was excluded from the land acquisition of Kodambakkam-Pudur Part II scheme and that the Government of Tamil Nadu was requested to issue necessary instructions to the District Revenue Officer, Kancheepuram, who had recommended for withdrawal of notification. His father Murugappa Maistry expired on 23.11.1980, and his mother Murugammal died on 01.02.1980.
(vii) The Special Commissioner and Commissioner of Land Administration, Madras 5 in C.L.A. No. (J3) 41688/1987 dated 08.11.1988, addressed to the 1st Respondent had informed that in his earlier letter in Lr. No. K. Dis (H) 4786/80 dated 10.11.1982 that he had already stated that in view of the fact that major extent of 17.72 acres out of 18.76 acres was withdrawn from acquisition, the balance small extent of 1.04 acres would not at all be sufficient for Neighbourhood Schemes and that it would not serve the purpose. In fact, the Special Commissioner and Commissioner of Land Administration recommended to the 1st Respondent/Government to exclude this meagre extent of 1.04 acres in S. No. 298/1, 2 & 3 of Kodambakkam Village from the Land Acquisition Proceedings. Since the 2nd and 3rd Respondents through their subordinates were attempting to take possession of Petitioners lands in S. No. 298/2 & 3 measuring 0.67 cents after lapse of 36 years from the date of Award (viz., the date of Award being 28.03.1970) without depositing the compensation amount or tendered the same in terms of the Award, they filed W.P. No. 23372 of 2006 on the file of this Court for a Writ of Mandamus restraining the Respondents from in any manner proceeding with the acquisition of their lands in Survey No. 298/2 and 3 measuring 0.67 cents in Kodambakkam village. The Writ Petition was admitted and their possession was protected by an order of injunction. The Respondents filed a counter. As seen from the averments in the counter affidavit filed by the Respondents, admittedly, the possession of the lands in S. No. 298/2 and 3 in Kodambakkam Village was not taken by the Land Acquisition Officer. They also admitted that the compensation amount awarded in Award No. 6/1970 dated 28.03.1970 was not deposited into Court.
(viii) Considering all these facts, this Court was pleased to dispose of the said Writ Petition through an order dated 28.02.2012 directing the Petitioners to submit a representation to the 1st Respondent within a period of 10 days enclosing fresh copies of the representations dated 29.10.2003 and 19.06.2006 to the Secretary to the Government, State of Tamil Nadu, Housing and Urban Development Department within a period of 10 days from the date of receipt of a copy of the said order. Accordingly, they gave a representation to the 1st Respondent through their letter dated 28.03.2012 enclosing the copy of the order. The 1st Respondent, through its letter dated 18.10.2012 in Letter No. 30437/LA2(1)/09-18, rejected the Petitioners representation mentioning that the lands were required for Tamil Nadu Housing Board.
(ix) As early as on 17.11.1976, the Chairman, State Housing Board, Nandanam gave a letter to the then District Revenue Officer, Kancheepuram informing the latter that the lands in S. No. 298/2 and 298/3 measuring an extent of 0.67 cents in Kodambakkam Village were excluded from land acquisition for Kodambakkam Pudur Part II Schemes and the Government was requested to issue necessary instructions to the District Revenue Officer for withdrawal notification. This letter is dated 17.11.1976. The possession of the lands continue to vest with the Petitioners and they had put up constructions in the aforesaid properties after getting necessary planning permission. The Special Commissioner and Commissioner of Land Administration through his letter dated 08.11.1988 addressed to the 1st Respondent herein has recommended to the Government to exclude the meagre extent of 1.04 acres in Survey No. 298/1, 2 and 3 of Kodambakkam Village from the land acquisition proceedings, since the major extent of 17.73 acres out of 18.76 acres was withdrawn from the acquisition proceedings by the Government.
(x) It is evident from the said letter that the land owner constructed about 30 shops abutting the 100 feet road after getting planning permission from the Corporation of Chennai. The Tamil Nadu Housing Board had not come forward to take possession of the lands. In paragraph 6 of the said letter, it was categorically reported to the Government that there may not be any necessity to pursue the scheme with the small available extent after a long time of 21 years after the publication of 4(1) Notification. The present letter dated 18.10.2012 had not referred to the previous correspondences between the Chairman of State Housing Board to the District Revenue Officer, Kancheepuram dated 17.11.1976 and the letter addressed by the Special Commissioner and Commissioner, Land Administration to the 1st Respondent dated 08.11.1988.
2. The Gist of the Counter of the 3rd Respondent:
(i) The Government approved the Section 4(1) Notification of the Land Acquisition Act to acquire an extent of 18.76 acres of land in S. No. 298/1 etc. of Kodambakkam Village, Madras District for the construction of houses by the Tamil Nadu Housing Board under Neighbourhood Scheme vide Government Letter No. 78876/S1/61-4 I.L.C. dated 4.7.1961 and published in TNGG II-1/4729 of 1961 of Part-II, Section- 1 dated 25.10.1961. The draft declaration u/s 6 of the Land Acquisition Act was made as per G.O. Ms. No. 194 I.L.C. (Housing) dated 24.01.1964 and published in TNGG-II-1 No. 628 of 1964, Part II Section- 1 dated 5.2.1964. Subsequently, an extent of 17.72 acres was withdrawn from the land acquisition proceedings in two stages i.e. in the year 1964 and 1969 leaving the remaining extent of 1.04 acres in S. No. 298/1, 2 and 3. After observing all the formalities, Award was also passed vide No. 6/70 dated 28.03.1970 for the land in S. Nos. 298/1, 2 & 3 measuring an extent of 1.04 acres at Kodambakkam Village Rs. 13,770/- as compensation amount for land owners.
(ii) There were some structures occupied in S. No. 298/1, 2 & 3 while passing of the Award and therefore, the Land Acquisition Officer had referred the matter u/s 47 of the Land Acquisition Act to surrender possession to the Tamil Nadu Housing Board. However, at the time of passing of the award, some valuable and also some useless structures were seen and they are as follows:
Survey No. 298/1 -I. Valuable Structure.
1. 4 Nos. of Thatched hut to the value of Rs. 2184/-.
2. 1 No. of House to the value of Rs. 400/-.
3. 1 No. of Shed to the value of Rs. 63/-.
4.6'' round well with to the value of Rs. 630/-.
II. Useless structures after 4(1) Notification
5. 1-Thatched shed Tea stall no value.
6. 2-Thatched shed with mud wash no value.
7. 3-Floor Mill (pucca booth) no value.
8. 4-Thatched house (provision store) no value.
Survey No. 298/2: Valuable.
Thatched house to the value of Rs. 121/-
After 4(1) Notification NIL.
Survey No. 298/3: Valuable.
One round well 6'' dia to the value of Rs. 810/-
After 4(1) Notification NIL
(iii) There was continuous correspondence with the District Collector, Chennai and the Tamil Nadu Tahsildar, Mambalam Guindy Taluk for handing over the land. The ex-land owners had constructed 40 numbers of shops and residential building with an extent of 54 cents and the balance 50 cents is being kept vacant without any access. The said land is essentially required for housing scheme. Hence, the Writ Petition is not maintainable either in law or on facts.
(iv) After passing of the Award, the Notice u/s 12(2) of the Land Acquisition Act was issued to the land owners (Murugappa Maistry, Ganesa Panditha and Murugappa Maistry of land in S. No. 298/2 and 298/3) by the Land Acquisition Officer and mentioned that the award amount will be deposited into Court u/s 30 and 31(2) of the Act. The land owner had not come forward to receive the award amount even after receipt of 12(2) Notice. The Award amount of Rs. 14,421/- was remitted into State Bank of India, Saidapet Branch, Nandanam, Chennai on 06.02.1970.
(v) The Special Commissioner and Commissioner of Land Administration recommended to the 1st Respondent/State of Tamil Nadu to exclude a meagre extent of 1.04 acres in S. No. 298/1, 2 and 3 of Kodambakkam Village from the land acquisition proceedings. As directed by this Court, by an order in W.P. No. 23372 of 2012 dated 28.02.2012, the 1st Respondent, after careful consideration, had rejected his request through its letter dated 18.10.2012 in Letter No. 30437/L.A. 2(1)/09-18 and stated that the land is essentially required for the Tamil Nadu Housing Board''s Schemes.
(vi) The Writ Petition suffers from vice of delay and latches in as much as the Award was passed on 28.03.1970 in Award No. 6/1970 after observing all Land Acquisition formalities in the Land Acquisition Act. Indeed, this Writ Petition was filed only in the month of December 2012 after a lapse of nearly 42 years of passing of the Award. The Petitioners could not take advantage of delay in taking possession, as it was on account of the filing of Writ Petition continuously one after the other before this Court. When the land vests with the Government, the land acquisition proceedings could not be challenged thereafter. This was the consistent view of the Hon''ble Supreme Court reported in the decision
The Petitioners'' Contentions:
3. The Learned Senior Counsel for the Petitioners submits that the impugned land acquisition proceedings in respect of the Petitioners land in S. Nos. 298/2 and 3 at Kodambakkam Village commencing from Section 4(1) of the Act followed by declaration u/s 6 of the Land Acquisition Act, 1894 and the Award dated 28.03.1970 passed in Award No. 6/1970 and 18.10.2012 is non est in the eye of law on the footing that the Respondents had not deposited the compensation amount in terms of Section 31(2) of the Land Acquisition Act, 1894. Also that, the Government had admitted the fact that the compensation amount was not deposited into Court and therefore, the entire acquisition proceedings were vitiated.
4. According to the Learned Senior Counsel for the Petitioners for depriving the citizen of his lands, the procedure established by law is to be followed and the compensation is to be paid. But, in the instant case, since the compensation amount was not deposited into Court in terms of Section 31(2) of the Land Acquisition Act, the entire acquisition proceedings got lapsed and it is non est in law.
5. The plea taken on behalf of the Petitioners is that the reasons assigned by the Respondents in the counter to W.P. No. 23372 of 2006 in not depositing the amount into Court and depositing the said amount before the S.B.I. Treasury Branch, Saidapet is not a sufficient compliance in terms of Section 31(2) of the Act. Added further, the impugned order passed by the 1st Respondent dated 18.10.2012 is an arbitrary and mechanical one besides the same being in violation of Articles 14, 19 and 21 of the Constitution of India.
6. The Learned Senior Counsel for the Petitioners submits that the Petitioners possession of lands were protected during the pendency of W.P. No. 23372 of 2006 and even at the time of disposing of the said Writ Petition by this Court, through an order dated 28.02.2012, this Court was pleased to protect the Petitioners possession till the disposal of the representation by the 1st Respondent.
7. The Learned Senior Counsel for the Petitioners cites the decision of the Hon''ble Supreme Court in
30. On the basis of the said order, the High Court observed that no land could be acquired without payment of compensation. No provision under the Act was shown to the Court which obliged the owner to hand over vacant possession of the land and to withhold payment of compensation. It was not a voluntary sale or purchase. It was a compulsory acquisition. If the acquiring bodies felt that there was difficulty in getting possession, it was for them to make up their mind whether to acquire or not to acquire such land. No obligation, however, could be imposed upon the owner to hand over vacant possession of land. No order as to payment of compensation could be made subject to condition of handing over possession by the owner. Such Award could not be said to be an Award contemplated under the Land Acquisition Act. Though the proceedings started in 1965 and the Award was passed in 1971, no compensation was paid till the matter was decided by the High Court in 1988.
31. The Court, therefore, stated;
The acquisition of land without payment of compensation is wholly without jurisdiction and the Award is a nullity.
32. The Court concluded;
In the instant case, the circumstances do not warrant withholding of the relief which the petitioners are otherwise entitled. The acquisition of the land without providing for compensation is wholly illegal. The payment of compensation was made dependant upon certain conditions to be fulfilled by the party which is not envisaged under the Land Acquisition Act. The lands can be acquired only in accordance with the provisions of the Act and the award is unreasonable, oppressive and unfair. The authorities cannot say that they will keep the land under acquisition without paying the compensation amount. Compensation was not paid for over 23 years. Such an award is alien to the scheme and intendment of the Land Acquisition Act and is void. The entire acquisition proceedings must be deemed to have lapsed. The petitioners are therefore entitled to ignore the award and proceed to deal with the land which admittedly belongs to them.
(emphasis supplied)
Also, in the aforesaid decision, at page 582 in paragraph 34, it is observed and held as under:
34. Though in the appeal filed by the A.P. Housing Board in the present proceedings, it was asserted that the decision of the High Court in Writ Petition No. 4194 of 1988 was not final as appeal was filed against the said decision, at the time of hearing of the appeal, it was admitted that no such appeal was filed against the judgment of the High Court and the decision had attained finality. The consequence of the decision of the High Court in the circumstances is that in respect of two acres of land, proceedings under the Land Acquisition Act were held bad, award nullity and the land-owner continued to remain owner of the property with all rights, title and interest therein. If it is so, neither the Housing Board nor any other person can have any right over the said land. The Land Grabbing case instituted by the original land-owners in respect of two acres of land was, therefore, maintainable and the Court was required to decide the case in accordance with law. It is immaterial that the Housing Board is merely juristic person and not natural person.
8. He also relies on the decision of the Hon''ble Supreme Court in
13. In view of the above discussion, we hold that the High Court was not right in holding that the writ petition of the appellant was not maintainable because the same was filed after passing of the award.
14. As a sequel to the aforementioned conclusion, we may have set aside the impugned order and remitted the matter to the High Court for disposal of the writ petition on merits but having carefully gone through the pleadings of the parties and the material produced before this Court, we are satisfied that the acquisition of the appellant''s land is vitiated due to colourable exercise of power by the State Government. No doubt, the notifications issued under Sections 4 and 6 of the Act recite that the land was acquired for a public purpose, namely, development of Sector 36, Rohtak, but the real object of the acquisition was to benefit a colonizer i.e. respondent No. 6, who had undertaken to develop the area into a residential colony.
Further, in the aforesaid decision at page 510 and 5111, in paragraph 17, it is held as follows:
17. We also find merit in the appellant''s plea that the official respondents are guilty of practising discrimination in the matter of release of land. In paragraphs 6(v) and 6(vi) of the writ petition the appellant had made the following averments:
6(v) That the petitioner who is having only small piece of land/residential house would be deprived of the roof and the construction made by the petitioner is of A Class and has been raised prior to the issuance of Notification u/s. 4 of the Act i.e. 15.12.2006. Photographs showing construction of the House of A Class, is annexed herewith as Annexure P/5. As per the policy of the State Government dated 30.9.2007, copy of which is annexed as Annexure P/6, the structure which have been constructed prior to the issuance of the notification u/s. 4 and is inhabited could be released u/s. 48(1) of the Act ibid but the respondents have ignored its own instructions and for releasing the land the pick and choose policy has been adopted by the authorities and the land of M/s. Sharad Farm and Holdings Pvt. Ltd. has also been released arbitrarily after (sic issuance of) notification u/s. 6 of the Act as is reflected from letter dated 4.9.2008, copy of which is annexed as Annexure P/7 and furthermore the constructed house of the petitioner has been acquired but the vacant land of some influential person have been left out and the State Government is not justified in acquiring the land in question for further handing over the same to the private developers for commercial gains at the cost of the life/livelihood of the petitioner and the impugned notification has not been issued for a bonafide purpose and is a result of connivance of the authorities with the respondent No. 4 to 6 and it is not permissible under law. The release of land of the petitioner would not create any hurdle in the scheme of the respondents.
That the construction of the house of the petitioner is prior to the notification u/s. 4 of the Land Acquisition Act. The Land Acquisition Collector in similar circumstances also recommended the release of the land and the same was not included while issuing the notification u/s. 6 of the Land Acquisition Act and it has been incorporated while issuing notices u/s. 9 of the Act ibid, copy of recommendations of the L.A.C. is attached herewith as Annexure P/8. There is, thus, a total non-application of mind. According to the notification u/s. 6 ibid Killa No. 23 (7-12) is stated to have been acquired but while in the notice u/s 9 of the Act ibid whole of the area has been shown to have been acquired. Even the recommendations of the L.A.C. for release of the constructed area has also been ignored without any basis.
9. The Learned Senior Counsel for the Petitioners refers to the decision of the Hon''ble Supreme Court in
The requirement of affixing of notice in the locality and information through beat of drum and through local panchayats and patwaris provided in Section 4(1)(a), has been complied with. The notification was also duly published in Government Gazette which satisfied Section 4(1)(b). However, there was non-compliance with Section 4(1)(c) since though the notification was published in two newspapers but none of them was in the regional language i.e. Kashmiri. Moreover, a corrigendum issued for enlarging the area of acquisition was not published in any newspaper. Furthermore, in spite of being informed about the absence of the landowners due to disturbance in the area in question and their being resident in Delhi, no effort was made to send proper notices to them, which defeats the very object (intimate people who are likely to be affected by the notification) of Section 4(1)(c). Hence, impugned judgment affirming the decision of the Single Judge of High Court quashing the acquisition proceedings from the stage of Section 5A calls for no interference. The respondent landlords are granted liberty to file additional objections, within fifteen days if they so desire.
He also invites the attention of this Court to the decision of the Hon''ble Supreme Court in
12. The State, especially a welfare State which is governed by the rule of law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.
13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a case where the courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party''s defence must be tried upon principles substantially equitable. (Vide
The 3rd Respondent''s Submissions:
14. It is the contention of the Learned Additional Advocate General appearing for the 3rd Respondent that in the instant case, the Government approved the Section 4(1) Notification to acquire an extent of 18.76 lands in S. No. 298/1 etc. of Kodambakkam Village, Madras District for the construction of houses by TNHB under the Neighbourhood Scheme as per Government Letter No. 78876/S1/61-4 I.L.C. dated 04.07.1961 and published in the Tamil Nadu Government Gazette in TNGG II-1/4729 of 1961 of Part-II, Section- 1 on 25.10.1961.
Also that, Section 6 Declaration was made as per G.O. Ms. No. 194 I.L.C. (Housing) dated 24.01.1964 and published in TNGG-II-1 No. 628 of 1964, Part II Section- 1 dated 5.2.64.
15. The Learned Additional Advocate General for the 3rd Respondent brings it to the notice of this Court that at a later point of time an extent of 17.76 acres of land from the land acquisition proceedings was withdrawn during the year 1964 and 1969 leaving the remaining extent of 1.04 acres in S. Nos. 298/1, 2 & 3. After completing the formalities, an Award was passed in Award No. 6/70 dated 28.03.1970 for the land in S. No. 298/1, 2 & 3 measuring an extent of 1.04 acres at Kodambakkam Village.
16. The Learned Additional Advocate General for the 3rd Respondent refers to Section 11 of the Land Acquisition Act, 1894 which speaks of ''Enquiry and Award by Collector''. Further, Section 11A of the Act speaks of the ''Period within which an award shall be made'' and further, in the instant case on hand, Section 11A is not applicable to the Petitioners.
17. As a matter of fact, the ingredients of Section 11A enjoin that the Land Acquisition Officer is to pass an Award u/s 11 of the Land Acquisition Act, 1894 within a period of two years from the date of declaration. Further, it is to be noted that if no award is made within that period, the entire proceedings for acquisition of the land would lapse. In short, Section 11A of the Act not only imposes an obligation, but the Land Acquisition Officer to make an Award u/s 11 of the Act within a period of two years from the date of declaration, but also provides for consequences, if such declaration is not made. Besides the above, the amount payable to the land owners is to be kept ready for disbursement u/s 30 of the Act, at the time of passing of the Award.
18. Continuing further, it is the plea of the 3rd Respondent that the Petitioners cannot invoke the jurisdiction of this Court under Article 226 of the Constitution of India. Also that, after a lapse of 4 decades, the Petitioners cannot approach this Court by way of Writ Petition and seek the relief claimed by them. That apart, the possession of the Petitioners in the acquired land in question is an illegal one.
19. The Learned Additional Advocate General for the 3rd Respondent submits that the Petitioners gave a representation on 28.03.2012 to the 1st Respondent inter alia stating that they filed W.P. No. 23372 of 2006 on the file of this Court seeking Writ of Mandamus restraining the Respondents from proceeding further in regard to the acquisition of their lands and in view of the lapse, Award No. 6/70 dated 28.03.1970 they asked for stay of all further proceedings and also claimed that they should not be dispensed from their lands and that the interim stay was granted by this Court was still in force. Also, in the said representation, they had averred that this Court in the writ proceedings had clearly observed that the Special Commissioner and Commissioner of Land Administration in its letter dated 08.11.1988 and in its proceedings in C.L.A. (J. 3) No. 41688/87 had recommended to the Commissioner and Secretary to Government, Housing and Urban Development for exclusion of their lands since they are the owners. This Court gave a direction in the writ proceedings directing the 1st Respondent to consider based on their previous representations dated 29.10.2003 and 19.06.2006 along with the present representation dated 28.03.2012 by perusing the list of documents showing their ownership of the said lands and decided the matter on merits and exclude their lands from the relevant provisions of the Land Acquisition Act. They had also forwarded their representation dated 28.03.2012 along with the list containing xerox copy of the documents to show that their ownership of the lands together with the copy of the order in W.P. No. 23372 of 2006 dated 28.02.2012. They also mentioned that the 1st Respondent was to pass orders within one week from the date of receipt of coy of this order etc.
20. The Learned Additional Advocate General for the 3rd Respondent refers to the Letter No. 30437/LA2(1)/09-18 dated 18.10.2012 of the 1st Respondent and submits that the 1st Respondent has informed the Petitioners by mentioning, among other things, that ''There is heavy demand for houses in the Chennai City. The land in question is situated in the middle of a well developed scheme of Tamil Nadu Housing Board. Hence the land is absolutely required to construct MIG/HIG flats to fulfil the need of needy public. Therefore the above land is required for Tamil Nadu Housing Board for the purpose for which it was acquired''.
21. The Learned Additional Advocate General for the 3rd Respondent submits that the possession of acquired lands in the instant case on hand vest with the Government and further, the ingredients of Section 48B of the Land Acquisition Act, 1894 cannot be invoked by the Petitioners especially when they are in possession of the land.
22. The Learned Additional Advocate General for the 3rd Respondent refers to Section 34 of the Land Acquisition Act, 1894 which speaks of ''Payment of Interest'', it is the stand of the 3rd Respondent that the land owners had not come forward to receive the award amount even after receipt of Section 12(2) Notice. Obviously, they evinced no interest to receive the award amount and the award amount of Rs. 14,421/- in question was remitted into SBI, Saidapet Branch, Nandanam, Chennai 35.
23. The Learned Additional Advocate General for the 3rd Respondent submits that even assuming that the award amount of Rs. 14,421/- was not paid to the land owners, yet, as per Section 34 of the Land Acquisition Act, the Petitioners are only entitled to claim interest.
24. At this stage, the Learned Additional Advocate General for the 3rd Respondent cites the decision of the Hon''ble Supreme Court in
19. The position in Civil Appeal Nos. 861 to 867 of 1962 is however different. The applications out of which these appeals have arisen were made in September 1959, i.e., about three years and eight months after January 17, 1956 when the High Court of Madhya Pradesh gave their decision declaring the tax provisions in question to be void.
20. It was necessary for the High Court to consider this question of delay before any order for refund was made. It does not appear however that any attention was paid to this question. In making the orders for refund in each of these cases the High Court merely said this:-
The present case is governed by
21. The learned Judges appear to have failed to notice that the delay in these petitions was more than the delay in the petition made in Bhailal Bhai''s case out of which Civil Appeal No. 362 of 1962 has arisen. On behalf of the respondents-petitioners in these appeals (C.A. Nos. 861 to 867 of 1962) Mr. Andley has argued that the delay in these cases even is not such as would justify refusal of the order for refund. He argued that assuming that the remedy of recovery by action in a civil court stood barred on the date these applications were made that would be no reason to refuse relief under Art. 226 of the Constitution. Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy. but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonable. If, on the other hand, as Mr. Andley seems to argue, the mistake was discovered much later, this would be a controversial fact which cannot conveniently be decided in writ proceedings. In either view of the matter we are of opinion the orders for refund made by the High Court in these seven cases cannot be sustained.
25. He also relies on the decision of the Hon''ble Supreme Court in
Action of the State authorities concerned of going to the spot and preparing panchnama showing delivery of possession was sufficient for recording a finding that actual possession of the entire acquired land had been taken and handed over to BDA. The utilisation of the major portion of the acquired land for the public purpose for which it was acquired is clearly indicative of the fact that actual possession of the acquired land had been taken by BDA. Once it is held that possession of the acquired land was handed over to BDA in 30.6.2001, the view taken by the High Court that the acquisition proceedings had lapsed due to non-compliance with Section 11A of the 1894 Act cannot be sustained.
Discussions:
26. It is not in dispute that the Government approved Section 4(1) Notification to acquire an extent of 18.76 of land in S. No. 298/1 etc. of Kodambakkam Village, Madras District for construction of houses by the Tamil Nadu Housing Board as per letter of the Government dated 04.07.1961 (published in the Tamil Nadu Government Gazette on 25.10.1961]. The draft declaration in terms of Section 6 of the Land Acquisition Act was made as per G.O. Ms. No. 194 I.L.C. Housing dated 24.01.1964 (published in the Tamil Nadu Government Gazette on 05.02.1964 and later an extent of 17.72 acres of land was withdrawn from the land acquisition proceedings in two stages i.e. during the year 1964 and 1969 leaving the remaining extent of 1.04 acres in S. No. 298/1, 2 and 3. Also, it is an admitted fact that on 28.03.1970 an Award was passed vide No. 6/70 in respect of the land in S. No. 298/1, 2 and 3 measuring an extent of 1.04 acres at Kodambakkam Village.
27. It comes to be known that there were some structures in S. No. 298/1, 2 and 3 at the time of passing of the Award and the Land Acquisition Officer referred the matter u/s 47 of the Land Acquisition Act to surrender possession to TNHB. In fact, some valuable and useless structures were found at the time of passing of the Award in S. No. 298/1 to 298/3. The stand of the 3rd Respondent is that the erstwhile land owners constructed 40 numbers shops and residential building with an extent of 54 cents and the balance 50 cents kept vacant without any access. When the land owners had not come forward to receive the amount even after receipt of Section 12(2) Notice of Land Acquisition Act, 1894, the 3rd Respondent remitted the award sum of Rs. 14,421/- into State Bank of India, Saidapet Branch, Chennai 35 on 06.02.1970. According to the Petitioners, they had not received the compensation amount and they take a stand that the compensation amount for the acquired lands should have been deposited into Court in terms of the provisions of the Land Acquisition Act.
28. At this stage, this Court makes a useful reference to the Letter of the Special Commissioner and Commissioner of Land Administration, Chennai addressed to the Commissioner and Secretary to Government, Housing and Urban Development Department, in Ref. No. CLA. (J. 3) 41688/1997, dated 08.11.1988 wherein in paragraphs 4 to 11, it is mentioned as follows:
4. But in the year 1982, the Government have finally decided to acquire the above said land after pointing out the unnecessary delay caused in taking possession and directed the S.D.C. (L.A.) Tamilnadu Housing Board to proceed further in the finalisation of land acquisition proceedings.
5. In the intervening period of 12 years (1970 to 1982) the land owners have constructed about 30 shops in the acquisition lands abutting the 100 feet road leaving only the balance extent of land behind them after getting the plan approved by the Corporation of Madras. Hence the Tamilnadu Housing Board was not coming forward to take possession of this land with the structures.
6. The above said complications have already been taken note of and that a detailed report was also sent to Government in this office letter No. K. Dis (H) 4786/80, dated 10.11.1982, stating that in view of the fact that major extent of 17.72 acres out of 18.76 acres has been withdrawn from acquisition, the remaining small extent of 1.04 acre will not at all be sufficient for a Neighbourhood scheme and thus serve its purpose. It has also been categorically reported to Government that there may not be any necessity to pursue the scheme with the small available extent, after such a long time i.e. 21 years after the publication of 4(1) Notification.
7. The Government have not however agreed to this as well as the various representations made by the land owners and requested the S.D.G. (L.A.) Tamilnadu Housing Board to take immediate possession of the lands in question.
8. After the lapse of 5 years, the Collector of Madras has now expressed the view that the areas not covered by the structures are low lying and encroached by structures and that it may not be possible to take vacant possession of this land. He has therefore solicited instructions from the special Commissioner and Commissioner of Land Administration to proceed further in the matter. The proposal has been again examined with the connected records.
9. In this case 4(1) notification had been published in the year 1961, award was passed in the year 1970, payment has not been made till date and possession has not also been taken till date, while so, this case should not be subjected to acquisition now as it will not be inconformity with the principles of natural justice. Further as much water has flown in since long back mainly by raising of structures and the vacant land is only meagre extent (1.04 acre) that too situated in a low lying area, it appears that the land in question will not be sufficient to the requirements for a Neighbourhood Scheme and that it may not be worthwhile to pursue the issue at this distance of time after 27 years break.
10. In the instant case, while major extent of 17.72 acres out of 18.76 acres has been withdrawn from acquisition proceedings already by the Government and while the remaining small extent of 1.04 acre is also covered with buildings, leaving only a small portion left vacant, it appears that the purpose for which the acquisition proceedings originally initiated cannot be fulfilled now.
11. In the circumstances, I reiterate my earlier stand already taken and intimated to Government in 1982 and recommend to Government to exclude this meagre extent of 1.04 acres in S. No. 298/1, 2 and 3 of Kodambakkam village from the land acquisition proceedings.
29. Further, the Petitioners on 29.10.2003 addressed a registered letter with acknowledgement due to the District Revenue Officer (Land Administration), Housing Board, Nandanam wherein in paragraph 5, they had stated that 43 years had elapsed after the issuance of Section 4(1) Notification and also that 34 years had gone by after passing of the award and till date no payment was made and also possession was not taken. Finally, they had prayed for releasing their house plots in S. Nos. 298/2, 298/3 with superstructures, well, bore well and coconut trees from the Land Acquisition proceedings. Also that, on 19.06.2006 the Petitioners addressed a letter to the Secretary (Housing), Madras 9 making a similar request to releasing their house plots, superstructures, bore wells, drinking water well and trees etc. from land acquisition proceedings in S. No. 298/2, 32 cents and in S. No. 298/3, 35 cents.
30. In the counter to W.P. No. 23372 of 2006 (filed by the Special Tahsildar (LA), TNHB, Nandanam, Madras 35), it was, inter alia, averred that ''There was no building in the said land on the date of passing of award on 28.03.1970 except one thatched house and a round drinking water well'' and also in paragraph 11, it was further mentioned that ''.... the Government have examined the recommendation of the Chairman, Tamil Nadu Housing Board, taking into account the over all public interest and rejected the above recommendation and directed to take possession of the land''. Further, in paragraph 12 of the counter to W.P. No. 23372 of 2006, it was mentioned that ''... from the date of passing of award for the said land on 28.03.1970 the Government became the owner of the land. The Petitioners have constructed shops and buildings, after the date of passing of award, by getting building permission conveniently hiding the fact that the said land was acquired by Government in the year 1970 for Tamil Nadu Housing Board Schemes. This action of the petitioners attracts penalty u/s. 46 of the said Act''. Added further, it is also stated that the 3rd Respondent/Tamil Nadu Housing Board was willing to take vacant possession of the said land and it is the duty of the Land Acquisition Officer to hand over vacant possession of the acquired land to the requisition Department and as such, the Petitioners occupation of the acquired land was treated as unauthorised occupation and the Tahsildar and Executive Magistrate, Mambalam Guindy Taluk is requested to enforce surrender of possession of the said land u/s 47 of the Act.
31. More significantly, in the counter to W.P. No. 23372 of 2006, it is, among other things, mentioned that ''the possession of the land could not be taken because the Petitioners made several representations to the authorities and the Government for exclusion of the said land from acquisition and according to Section 16 of the Land Acquisition Act, possession of the land may be taken, but the Section does not stipulate that the land should be taken possession immediately after passing of the Award.
32. In regard to the non payment of compensation amount, in para 16 of the Counter to W.P. No. 23372 of 2006 (filed by the Special Tahsildar (LA), TNHB, Nandanam, Madras 35), it is mentioned that the land owners, in spite of the time granted to them, had not submitted documentary evidence before the Land Acquisition Officer to decide the ownership of the land and as such, the Land Acquisition Officer ordered to deposit the compensation amount into Civil Court. But, the amount could not be deposited into Civil Court due to the frequent representations from the land owners for exclusion of the land from acquisition. That apart, it is categorically mentioned that ''However, compensation amount will be paid or deposited into Civil Court as provided u/s 34 of the Act''.
33. At this juncture, a perusal of the Judgment in W.A. Nos. 875 and 876 of 2009 dated 22.12.2011 (against the common order in W.P. No. 4096 of 2008 and 30186 of 2007 dated 09.06.2009) passed by this Court shows that in paragraph Nos. 10 to 13, it is observed and held as follows:
10. As stated supra, the question to be decided in these appeals is whether non-payment/belated payment of the compensation, beyond the reasonable time, would nullify the acquisition proceedings.
11. The learned single Judge has held that if there is delay in payment of the compensation amount, then, the landowners can claim interest as provided for u/s 34 of the Act. The learned single Judge further held that the only provision which makes the land acquisition proceedings to lapse is Section 11A of the Act and that too when the award is not passed within the time stipulated therein. On such findings, the learned single Judge has rejected the writ petitions filed by the land owners.
12. This question involved in these matters is no more res integra, in view of the authentic pronunciation by the Honourable Apex Court in
13. In Mahesh Chandra Banerji''s case (supra), the Honourable Apex Court has held that ''whatever be the dispute, a citizen cannot be deprived of his property except in accordance with the procedure established by law. The extent of the lands so acquired will have to be established and compensation in respect thereof has to be paid. Holding so, the Honourable Apex Court has nullified the acquisition proceedings, as improper, since the lands were acquired without paying any compensation amount. This is even the spirit of the judgment of the Honourable Apex Court in
34. In this connection, this Court pertinently points out that the present Writ Petitioners filed W.P. No. 23372 of 2006 and on 28.02.2012 this Court directed the Petitioners to submit fresh copies of representations dated 29.10.2003 and 19.06.2006 to the 1st Respondent within a period of 10 days from the date of receipt of copy of this order. Further, on receipt of such representations, this Court, without going into the merits of the Petitioners representations directed the 1st Respondent to consider fresh representations dated 29.10.2003 and 19.06.2006 in the light of recommendations sent by the Special Commissioner and Commissioner of Land Administration dated 08.11.1988; in the light of the documents produced by the Petitioners including the house tax receipts and patta and also in the light of the Notice of Award issued u/s 12(2) of the Act dated 28.08.1970 and pass orders, within a period of twelve weeks from the date of receipt of such representations from them, on merits and in accordance with law.
35. In this regard, this Court very relevantly points out that passing of an Award u/s 11 of the Land Acquisition Act, 1894 is not an empty formality. Also that, u/s 31 of the Act, the compensation determined by the Land Acquisition Officer under the Award is required to be tendered to the persons entitled to receive the same. Indeed, a combined reading of the ingredients of Sections 11 and 31(1) of the Act shows that the passing of Award is incomplete without tendering the payment of compensation.
36. It is to be noted that the payment is tendered by issue of a notice on the party fixing the date on which and places where the payment would be made. This notice is usually given along with the notice of the Award u/s 12(2) of the Land Acquisition Act in which the date on which compensation would be taken is also mentioned. As a matter of fact, the Collector has no power to finally adjudicate upon the title to compensation and that the dispute has to be decided either in a reference u/s 18 or u/s 30 or in a separate suit as per decision
37. u/s 16 of the Land Acquisition Act, the acquired land vests in the Government only when Award is passed. In the law of property, the vesting Government take place only when the consideration in the property passes to the concerned/interested. Further, on going through the ingredients of Section 16 of the Act, it is quite clear that the land shall vest absolutely in Government on the Award being passed u/s 11 of the Act and possession of the land being taken, it presupposes that the payment of compensation as per Section 31 of the Act, as opined by this Court.
38. It is an undisputed fact that consequent upon passing of the Award u/s 11 of the Act and possession taken of the land, by operation of Section 16 of the Act, the right, title and interest of the erstwhile owner stand extinguished and the Government become absolute owner of property free from all encumbrances thereby no one has nor any claimed any right, title and interest in respect of the acquired land. But before the possession could be taken, the Government have the power u/s 48(1) of the Act to denotified the land. In that event, the land is required to be surrendered to the erstwhile owners as per decision of the Hon''ble Supreme Court in State of Punjab V. Saduram, 1996 L.A.C.C. 478 (SC).
39. In the decision R.C. Paul V. State of Tamil Nadu, represented by Secretary to Government, Industries Department and others, (2006) 2 M.L.J. 228, at page 229, it is observed as follows:
According to Section 16B of the Land Acquisition Act, 1894, only when the Government is satisfied with the land acquired under this Act for any public purpose is not used for the purpose for which it was acquired, then they may take action to forfeit the land as penalty.
40. One can very well safely say that Section 31 of the Land Acquisition Act, 1894 may be recorded as supplemental to Section 11 and 12 of the Act for it prescribes what ought to be done by the Collector after he has made and filed his award even before he proceeds to take possession of the land u/s 16. In reality, he must pay or at least tender the compensation money to the persons/parties entitled thereto in terms of the Award. If he takes possession without doing so, u/s 17 of the Act, he becomes liable to pay interest on the entire amount. Section 31 of the Land Acquisition Act relates to the payment of compensation (money) by the Collector or the deposits by him into Court. If the parties interest and who are entitled thereto do not consent to receive the amount or when there is a dispute as to title or as to the apportionment of compensation amount or when the compensation money is payable to a person who is not competent to alienate the land. In all such cases, the Collector should deposit the amount of compensation/money into Court to which the reference u/s 18 of the Act would ordinarily be submitted.
41. At this stage, it is to be remembered that failure to adhere to the procedure may not result in proper vestiture of the property. Where urgent clauses are invoked u/s 17 of the Act, the land shall vest in the Government when possession thereof is taken. Also that, Section 3(a) of Section 17 of the Act directs that even where such possession is taken u/s (1) thereof, the Land Acquisition Officer shall tender payment of 80% of the compensation. The non compliance of sub-Section (3) would render the vestiture u/s 17(1) of the Act as an ineffective one. Viewed from any angle, the Government does not derive any title unless the compensation is paid. In any event, once an award is passed and the reference made u/s 31(2) of the Act was answered in favour of the persons concerned, the failure to pay the compensation as a whole or in part renders such award incomplete, in the considered opinion of this Court.
42. That apart, u/s 17(1) of the Land Acquisition Act, the property vests after the possession was taken by the Government in the circumstances mentioned u/s 17(1). Possession under this Section would also be taken after the publication of the notice u/s 9 of the Act. Therefore, the only contingency prescribed for taking possession prior to the award is one adumbrated in Section 17 of the Act. Further, in no case the property could vest before the possession was given either after passing of the award as mentioned u/s 16 or earlier as stated u/s 17 of the Act. Moreover, on taking possession only under the two circumstances specified in Sections 16 and 17 of the Land Acquisition Act, the property can vest in the Government. Legally speaking, the property remains the property of the owner till it vests by virtue of Section 16 or Section 17 of the Act in the Government, as per decision
43. In fact, Section 33 of the Land Acquisition act, 1894 confers power to the Court, on an application by a person interested or claiming an interest in such money to pass an order to invest the amount so deposited in such Government or other approved securities and may direct the interest or other proceeds to any such investment to be accumulated and paid in such manner it may consider proper so that the parties interested therein may have the benefit therefrom as they might have had from the land in respect of where of such money shall have been deposited or as near thereto as may be.
44. In this connection, this Court points out that the Court is not disabled from giving the interest or proceeds accumulated to a person who would have received the same if the land was not converted into money due to acquisition as per decision in
45. Insofar as the right of land owner is concerned, his right to be compensated is enforceable against the State. It is the liability of the Collector in terms of the relevant provisions of the Land Acquisition Act to pay the amount awarded, together with interest in the event of the amount not being paid in time as per decision of the Hon''ble Supreme Court in
46. If the Government takes back the compensation amount on the ground that there was no necessity to acquire the land, the Government becomes divested of the land as per decision Subramania Asari V. Secretary of State, 17 MLJ 557.
47. Coming to the (Tamil Nadu Amendment) Act 1996 in respect of Section 48B of the Land Acquisition Act, 1894, it is to be pointed out that the same contemplates clearly a mutual agreement between the original owner and the Government to reconvey the land which is vested in the State Government u/s 16 to the original owner on his return of the money paid to him in respect of the acquisition. Section 48B of the Act does not contemplate a unilateral withdrawal from the acquisition by the State Government. The land in question stood vested in the State Government u/s 16 of the Act and because of the decision of the Hon''ble Supreme Court in
48. A cursory perusal of the ingredients of Section 48B of the Act carefully points out that what is evident and clear is that the words ''Willing to Repay'' would imply the land owners/claimants willing to take back the lands. The provision will apply only to the land owner to take back the land, even if it is prepared to forgo the amount already paid to the land owners. Section 48B of the Act should be understood in the light of Section 48(1) and it cannot go contra to it as per decision The Special Tahsildar V. The Tamil Nadu Magnesite Limited, Salem and another, 2002 (2) L.A.C.C. 396 (Madras).
49. In this connection, this Court aptly points out the Division Bench decision of this Court in
Section 48B of the Act contemplates a situation where after the land had already been acquired by the State Government, subsequently, both the original land owner and the State Government agreed that the land be re-conveyed to the original land owner on his willingness to repay the amount paid to him. A perusal of Section 48B shows that it will apply only to the original owner who is willing to repay the amount paid to him under the Act. Hence, it is obvious that unless the original owner is willing to repay the amount paid to him. Section 48B will have no application.
50. Further, this Court relevantly points out the decision of the Hon''ble Supreme Court in
It is seen that after the notification in GOR 1392 dated 17.10.1962 was published, the acquisition proceeding had become final, the compensation was paid to the appellants'' father and thereafter the lands stood vested in the State. In terms of the agreement as contemplated in Chapter VII of the Act, the Company had delivered possession subject to the terms and conditions there under. It is seen that one of the conditions was that on cessation of the public purpose, the lands acquired would be surrendered to the Government. In furtherance thereof, the lands came to be surrendered to the Government for resumption. The lands then were allotted to SRVS Ltd., 5th respondent which is also a subsidiary amalgamated company of the original company. Therefore, the public purpose for which acquisition was made was substituted for another public purpose. Moreover, the question stood finally settled 32 years ago and hence the writ petition cannot be entertained after three decades on the ground that either original purpose was not public purpose or the land cannot be used for any other purpose.
51. Further, in the decision of the Hon''ble Supreme Court in
A.... If the Respondents were aggrieved by the fact that the land was not being put to use for the purpose for which it was acquired, even though the Urgency Clause was invoked, they did not need to wait for over 22 years to file the Writ Petition. To be also remembered that the Respondents had filed a Reference u/s 18 as well as an Appeal to the High Court for enhancement of compensation. This, therefore, was not a ground which justified the gross delay and latches in filing the Writ Petition. Mere fact that the land was not put to use for the purpose it was acquired by itself did not justify the delay and latches.
B. It was next submitted that the Respondents did not file the Writ Petition because some other party had challenged the acquisition and got a stay order from a Court of law. It was submitted that the Writ Petition was filed only after that litigation was disposed of. We see no substance in this submission also. That litigation had nothing to do with the Respondents'' or the acquisition of the Respondent''s land. In the Writ Petition, filed by the Respondents, there is not even a word about those proceedings. The fact of those proceedings only came on record in the reply filed by the State. The State sought to justify, non use of the land for the purpose for which it was acquired, on ground of that litigation. Merely because this fact was mentioned by the State it did be afford Respondents an excuse to justify delay and latches on their part.
C. It was next submitted that even though there were delay and latches on the part of the Respondents they were justified in filing the Writ Petition as the fraud was being played by the State and the acquiring body. It was submitted that the land was sought to be transferred to some other body even though the acquisition was on behalf of Appellants. It was submitted that the Respondents filed the Writ Petition as this fraud came to their knowledge. We see no substance in this connection also. In the Writ Petition there is no ground of fraud. These are also facts which came to light as a result of the reply filed by the State in the Writ Petition. It was the State who mentioned that the Appellants did not have the money to develop the land and that therefore the land was proposed to be transferred to some other party. This would afford no ground for entertaining a Writ Petition which was filed 22 years after the Section 4 Notification had been issued. (Para 7).
D. In this case, there is absolutely no explanation for the delay and latches of over 22 years, particularly when the Respondents had applied for enhancement of compensation. (Para 9)
E. The Respondents did not need to wait 22 years to see that nothing was being done to utilize the land. The High Court was entirely in error in stating that the Respondents could not be accused of any delay and that the delay in fact showed the bonafides of the Respondents. Further, the High Court seems to have overlooked the fact that the respondents had applied for enhancement of compensation and had filed a Writ Petition only after those proceedings were over. (Para 10)
52. In the decision
The reference under S. 18 of the Act, is not merely confined to the question of enhancement of compensation but may also be in respect of the measurement of the land, the persons to whom it is payable or the apportionment of the compensation among the persons interested. Under S. 18 the reference is at the instance of persons present or represented before the Collector at the time when the award is made or the persons on whom there is notice of the filing of the award under S. 12(2). Others could seek reference under S. 30. The Collector could also make a reference suo motu wherever he considered that complicated question of fact and law are involved. However, a person covered by S. 18, who failed to seek a reference under S. 18 within the period of limitation cannot ask the Collector to exercise his powers under S. 30 nor could he file a suit. Only those not falling under S. 18, could seek a reference under S. 30 or file a suit. (Para 10)
It could not be contended that once the award is made, the Collector is bound to tender payment in accordance with the terms of the award until the Civil Court while disposing of the reference under S. 18, sets aside or modifies the Collector''s award. This ignores the conditions laid down in S. 31(1). Under the sub-section payment could be made, ''unless prevented'' by one or more of the contingencies mentioned in sub-sec. (2) of S. 31. One of the contingencies referred to in S. 31(2) can be said to have occurred if there be any dispute as to title to receive the compensation or as to the apportionment of it. The words ''there be any dispute'', do not mean that there must have arisen a fresh dispute after the passing of the award by the Collector. The contingency refers to the dispute which has already arisen in the award inquiry and in such a case, the Collector is statutorily ''prevented'' from making any payment as per the award and he is bound to wait and see, till the expiry of the period of limitation under S. 18(2), whether any of the parties to the award is not satisfied with the title to the compensation or its apportionment as decided by him. If any such reference is sought for under S. 18 to the civil Court, he is bound to deposit the compensation at any rate, the disputed part of the compensation in the civil Court along with the reference under S. 31(2). The idea is that the amount should be ''ready'' for disposal as soon as the Civil Court, acting on the reference, decides the question of title and apportionment. (Paras 12, 13)
The purpose of the deposit being its availability for distribution at the time of disposal of the reference, the Court must be deemed to have inherent powers so as to make its final orders effective, efficacious and meaningful. Every Civil Court has inherent powers to pass interlocutory orders so that its final orders can achieve the real purposes for which they are intended, and here the purposes of adjudication of rights and immediate distribution. Therefore the powers to direct deposit by the Collector pending the reference are incidental and inherent in the Court. (Paras 17, 18)
Further, the power course is to direct not the party but the Collector, either as an interim measure or at the time of disposal of the reference by the court, to deposit the disputed amount with the Civil Court leaving it to the Collector to take such steps as he may deem fit in order to secure the interests of the State. (Para 23)
53. In the decision of the Hon''ble Supreme Court in
20. On behalf of the petitioners, it was pointed out that in most of the writ applications, which had been filed questioning the notifications u/s 4 and declarations u/s 6 of the Act, the interim orders were only in respect of dispossession of the petitioners of such writ applications. As such the respondents were at liberty to proceed with the land acquisition proceedings and should have prepared the awards within a reasonable time. In any case, all such writ applications were dismissed by the judgment of this Court on August 23, 1974, in the case of
21. It was urged on behalf of the respondents that in view of sub-section (3) of Section 4 of the Land Acquisition (Amendment and Validation) Act, 1967 if the declarations u/s 6 have been after expiry of three years from the date of publication of notifications under sub-section (1) of Section 4, then the persons concerned are entitled to be paid simple interest, calculated at the rate of six per cent per annum on the market value of such land, as determined u/s 23 of the Act, up to the date of the tender or payment of the compensation awarded by the Collector for the acquisition of such land. The aforesaid sub-section (3) of Section 4 of the Land Acquisition (Amendment and Validation) Act, 1967, may be applicable to cases where the declaration u/s 6 has been made either before or after the commencement of the said Act, but made after the expiry of three years of the notification under sub-section (1) of Section 4 of the Act. But in cases where declaration has been made within three years from the date of issuance of notification under sub-section (1) of Section 4, obviously the aforesaid Amending Act shall not be applicable. This provision can hardly be said to compensate the persons who have been deprived of the legitimate compensation for years.
22. Reference was also made to Section 34 of the Act. That provision will apply where the compensation has neither been paid nor deposited before taking possession of the land and interest at the rate of six per cent, which has been later substituted to nine per cent by Act 68 of 1984, has to be paid from the time of taking possession until the compensation has been paid or deposited. This section has no relevance, in the context of the question involved in the present cases.
Also, in the aforesaid decision, at page 58 and 59, in paragraphs 25 to 27, it is observed as follows:
25. There appears to be some force in the contention of the petitioners that the object of respondents was to peg the price of the lands acquired from the different cultivators to a distant past and not to proceed further because if the awards had been made soon after the declarations u/s 6, respondents had to pay or tender the compensation to the claimants, which for some compulsion, respondents were not in a position to pay or tender them. But, nonetheless, the exercise of power in the facts and circumstances of the cases by the respondents has to be held to be against the spirit of the provisions of the Act, tending towards arbitrariness. In such a situation this Court in exercise of power under Article 32 and the High Court under Article 226, could have quashed the proceedings. But, taking into consideration that in most of the cases, the Delhi Administration and Delhi Development Authority have taken possession of the lands and even developments have been made, it shall not be proper exercise of discretion on the part of this Court to quash the proceedings because, in that event, it shall affect the public interest. Moreover, third party interests created in the meantime are also likely to be affected and such third parties are not impleaded. The relief of quashing the acquisition proceeding having become inappropriate due to the subsequent events, the grant of a modified relief, considered appropriate in the circumstances, would be the proper course to adopt. The High Court or this Court, can grant a modified relief taking into consideration the injury caused to the claimants by the inaction on the part of respondents and direct payment of any additional amount, in exercise of power under Article 226 or Article 32 of the Constitution.
26. We are of the view, that there was no justification on the part of the respondents for the delay in completion of the proceedings after the judgment of this Court in
27. According to us, after the judgment of this Court in
54. In the decision of the Hon''ble Supreme Court in
9. Looking to the facts of the present case and conduct of the respondents 1-5, the High Court was not at all justified in ignoring the delay and laches and granting relief to them. As already noticed, the respondents 1-5 approached the High Court by filing writ petition almost after a period of 17 years after finalization of the acquisition proceedings. They accepted the compensation amount as or the award and sought for enhancement of the compensation amount without challenging the notification issued under Sections 4 and 6. Having sought for enhancement of compensation only, they filed writ petition even three years after the appeals were disposed of by the High Court in the matter of enhancement of compensation. There is no explanation whatsoever for the inordinate delay in filing the writ petitions. Merely because full enhanced compensation amount was not paid to the respondents, that itself was not aground to condone the delay and laches in filing the writ petition. In our view, the High Court was also not right in ordering restoration of land to the respondents on the ground that the land acquired was not used for which it had been acquired. It is well-settled position in law that after passing the award and taking possession u/s 16 of the Act, the acquired land vests with the Government free from all encumbrances. Even if the land is not used for the purpose for which it is acquired, the land owner does not get any right to ask for retesting the land in him and to ask for restitution of the possession. This Court as early as in 1976 in
At this stage Shri Deshpande complained that actually the municipal committee had sold away the excess land marking them out into separate plots for a housing colony. Apart from the fact that a housing colony is a public necessity, once the original acquisition is valid and title has vested in the municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long after the requiring authority diverts it to a public purpose other than the one stated in the Section 6(3) declaration.
13. We have to deal with one more contention of the learned counsel for the respondent 1-5 that a different procedure has to be followed for acquisition of land by the State for the purpose of a private company. There is no dispute on that point. We fail to understand how this contention advances the case of the respondents when they did not challenge the acquisition proceedings, even on that ground if it was available within reasonable time. It was too late for them to challenge the acquisition proceedings on that ground as well.
55. In the decision of the Hon''ble Supreme Court in
From the provisions of Sec. 17(1) it is plain that the Collector cannot take possession of the land in question unless the Government directs him to do so. The Government can direct him to do so only in cases of urgency. Even when the Government directs the Collector to take possession, he cannot do so until expiration of 15 days from the publication of a notice u/s 9(1). When there is no material on record to show that the Government had given to the Collector any direction u/s 17(1); nor is there any material to show that the lands in question had been taken possession of by the Collector u/s 17(1), the lands cannot be said to have vested in
The expression "whenever the appropriate Government so directs" in Section 17(1) refers to the taking of possession and not to the declaration of urgency. Even in case of urgency, the Government may not think it necessary to take immediate possession for good reasons. Neither the language of Section 17(1) nor public interest justifies the construction that the expression refers to urgency and not to possession. Hence on the expiration of the fifteen days from the publication of notice u/s 9(1) the lands do not vest in the Government. (Para 15)
56. Furthermore, in the decision
Section 31 of the Act, so far as it is relevant for the purpose of these petitioners, reads as under:
31. Payment of compensation or deposit of same in Court.- (1) On making an award u/s 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 it to them unless prevented by some one 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 the compensation in the Court to which a reference under S. 18 would be submitted.
From the affidavit dt. Feb. 10, 1988, filed in this Court, it is quite evident that the said amount was not deposited either in the R.D. Or with the District Judge. That being so, the award dt. Sept. 21, 1986, was not a valid award as regards the petitioners.
57. In the decision of the Hon''ble Supreme Court in
The liability to pay interest on the amount of compensation determined u/s 23(1) continues to subsist until it is paid to the owner or interested person or deposited into court u/s 34 read with Section 31. Equally, the liability to pay interest on the excess amount of compensation determined by the Civil Court u/s 26 over and above the compensation determined by the Collector/Land Acquisition Officer u/s 11 subsists until it is deposited into court. Proprio vigore in case of further enhancement of the compensation on appeal u/s 54 to the extent of the said enhanced excess amount or part thereof, the liability subsists until it is deposited into court. The liability to pay interest ceases on the date on which the deposit into court is made with the amount of compensation so deposited. As held earlier, the computation of the interest should be calculated from the date of taking possession till date of payment or deposit in terms of Section 34 or deposit into court in terms of Section 28, as the case may be.
Even in general principles of law, Section 60 of the Contract Act provides that where the debtor has omitted to intimate and there are no other circumstances indicating as to which debt the payment is to be applied, the creditor may apply it at his discretion, to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is not barred by the law in force for the time being, as to the limitation of suits. It would, therefore, be clear that the debtor may indeed exercise that right and may specify his appropriation expressly or his intention may be implied as shown by other circumstances, indicating that his intention at the time of payment was to appropriate the amount deposited by him to a specific debt or account towards the debt. The right to make appropriation is indicated by necessary implication, by the award itself as the award or decree clearly mentions each of the items. When the deposit is made towards the specified amounts, the claimant/owner is not entitled to deduct from the amount of compensation towards costs, interest, additional amount u/s 23(1-A) with interest and then to claim the total balance amount with further interest.
58. In the decision of the Hon''ble Supreme Court in
3... Having acquired the land under the provisions of the Act and the possession having been taken there under, the right, title and interest held by Smt. Kokila stood extinguished and vested in the State free from all encumbrances. Consequently, the State is the absolute owner. The State, being the owner, is entitled to file the suit for possession. The High Court, therefore, has rightly found that the appellant at this distance of time cannot question the correctness of the acquisition made in 1928.
59. In the decision of the Hon''ble Supreme Court in
If the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to be erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution.
60. In the decision of the Hon''ble Supreme Court in
The scheme of the Act reveals that the remedy of reference under S. 18 is intended to be available only a ''person interested''. A person present either personally or through representative of on whom a notice is served u/s 12(2) is obliged, subject to his specifying the test as to locus, to apply to the Collector within the time prescribed u/s 18(2) to make a reference to the Court. The basis of title on which the reference would be sought for u/s 18 obviously be a pre-existing title by reference to the date of the award. So is S. 29, which speaks of ''persons interested''. Finality to the award spoken of by S. 12(1) of the Act is between the Collector on one hand and the ''persons interested'' on the other hand and attaches to the issues relating to (i) the true area, i.e., measurement of the land, (ii) the value of the land i.e. the quantum of compensation, and (iii) apportionment of the compensation among the ''persons interested''. The ''persons interested'' would be bound by the award without regard to the fact whether they have respective appeared before the Collector or not. The finality to the award spoken of by S. 29 is as between the ''person interested'' inter se and is confined to the issue as to the correctness of the apportionment. S. 30 is not confined in its operation only to ''persons interested''. It would, therefore, be available for bring invoked by the ''persons interested'' if they were neither present nor represented in proceedings before the Collector, nor were served with notice under S. 12(2) of the Act or when they claim on the basis of a title coming into existence post award. The definition of ''person interested'' speaks of ''an interest in compensation to be made''. An interest coming into existence post award gives rise to a claim in compensation which has already been determined. Such a person can also have recourse to S. 30. In any case, the dispute for which S. 30 can be invoked shall remain confine only (i) as to the apportionment of the amount of compensation or any part of thereof, or (ii) as to the persons to whom the amount of compensation (already determined) or any part thereof is payable. The State claiming on the basis of a pre-existing right would not be a ''person interested'' as already pointed out herein above and on account of its right being pre-existing, the State, in such a case, would not be entitled to invoke either S. 18 or S. 30 seeking determination of its alleged pre-existing right. A right accrued or devolved post award may be determined in a reference u/s 30 depending on Collector''s discretion to show indulgence, without any bar as to limitation. Alternatively, such a right may be left open by the Collector to be adjudicated upon any independent legal proceedings. This view is just, sound and logical as a title post award could not have been canvassed upto the date of the award and should also not be left without remedy by denying access to S. 30. Viewed from this angle, Ss. 18 and 30 would not overlap and would have fields to operate independent of each other.
Differences between reference under S. 18 and reference under S. 30 by reference to locus disputes referable, nature of power, and limitation summarised.
61. That apart, in the decision of the Hon''ble Supreme Court in
16. In order to proceed on these lines, the ambit and contours of public purpose as understood by this Court in certain decided cases has to be taken note of. We have already noticed the broad and general meaning of the expression ''public purpose'' as stated by Batchelor, J. nearly a century back. In the particular context of setting up industries by private enterprise, this Court''s perspective of public purpose is discernible from certain decided cases to which we shall make reference.
17. In Jageram''s case (supra) the public purpose mentioned in the notifications under Sections 4 & 6 was "the setting up a factory for the manufacture of China-ware and Porcelain-ware". The State Government had contributed a sum of Rs. 100 as was done in the case of Somavanti (supra) towards the cost of the land. The question arose whether it was necessary for the Government to proceed with the acquisition under Part VII of the Act. Holding that acquisition under Part VII need not have been resorted to, this Court proceeded to discuss the question whether the acquisition was intended for a public purpose. K.S. Hedge, J. speaking for the Court observed thus:
There is no denying the fact that starting of a new industry is in public interest. It is stated in the affidavit filed on behalf of the State Government that the new State of Haryana was lacking in industries and consequently it had become difficult to tackle the problem of unemployment. There is also no denying the fact that the industrialization of an area is in public interest. That apart, the question whether the starting of an industry is in public interest or not is essentially a question that has to be decided by the Government. That is a socio-economic question. This Court is not in a position to go into that question. So long as it is not established that the acquisition is sought to be made for some collateral purpose, the declaration of the Government that it is made for a public purpose is not open to challenge. Section 6(3) says that the declaration of the Government that the acquisition made is for public purpose shall be conclusive evidence that the land is needed for a public purpose. Unless it is shown that there was a colourable exercise of power, it is not open to this Court to go behind that declaration and find out whether in a particular case the purpose for which the land was needed was a public purpose or not: see Smt. Somavanti and Others v. The State of Punjab and Raja Anand Brahma Shah v. State of U.P. On the facts of this case, there can be hardly any doubt that the purpose for which the land was acquired is a public purpose.
18. In Somavanti''s case, setting up a factory for the manufacture of refrigeration compressors and ancillary equipment, was held to subserve public purpose. The importance of such industry to a State such as Punjab which had surplus food and dairy products, the possible generation of foreign exchange resources and employment opportunities were all taken into account to hold that public purpose was involved in establishing the industry. It was observed "on the face of it, therefore, bringing into existence a factory of this kind would be a purpose beneficial to the public even though, that is a private venture." The decision in Jageram''s case was cited with approval by this Court in
19. These decisions establish that a public purpose is involved in the acquisition of land for setting up an industry in private sector as it would ultimately benefit the people. However, we would like to add that any and every industry need not necessarily promote public purpose and there could be exceptions which negate the public purpose. But, it must be borne in mind that the satisfaction of the Government as to the existence of public purpose cannot be lightly faulted and it must remain uppermost in the mind of the Court.
62. It is to be pointed out in the decision
63. It is to be noted that the Land Acquisition Act, 1894 is a expropriatory legislation. The procedure, mode and manner for payment of compensation are prescribed under Sections 31 to 34 of the Land Acquisition Act, 1894.
64. As far as the present case is concerned, in respect of Award No. 6/70 (M. 2.39711/63), Notices were issued by the Special Deputy Collector and L.A.O. for Land Administration, Neighbourhood Schemes, Madras 1 dated 04.04.1970 to the persons (i) Ponnuswamy Naicker and others in respect of S. No. 298/1 measuring an extent of 0.37 cents; (ii) in respect of S. No. 298/2 measuring an extent of 0.32 cents to Murugappa Maistry, Ganesa Pandithar; and (iii) in respect of 298/3 measuring an extent of 0.35 cents to Murugammal, requiring them to vacate and deliver the lands in their possession on 13.04.1970 at 8.30 a.m. to the Special Revenue Inspector and they were also informed that they will fail to deliver possession of the lands, then, the Taluk Magistrate, Saidapet would address to enforce surrender the possession of the property to the Department u/s 47 of the Land Acquisition Act. There is no dispute that the Award in respect of S. Nos. 298/1, 2 and 3 of Kodambakkam Village measuring an extent of 1.04 acres was passed in Award No. 6/70 dated 28.03.1970.
65. As seen from the File, the notice dated 04.04.1970 issued by the Special Deputy Collector and L.A.O. for Land Acquisition, Neighbourhood Schemes shows that for Murugappa Maistry, the notice was received by one Saminathan on 09.04.1970 (received on behalf of his father Murugappa Maistry); also that Murugammal has affixed her L.T.I. and further, the signature of her son Saminathan has also been obtained in Tamil. On 06.04.1970 the Notice of Award u/s 12(2) of the Act was issued by the Land Acquisition Officer and Special Deputy Collector for Land Acquisition, Neighbourhood Schemes to the persons like A. Ponnuswamy Naicker in respect of S. No. 298/1 measuring an extent of 0.37 cents, in respect of S. No. 298/2 measuring an extent of 0.32 cents, the notice of Award was issued to Murugappa Maistry and Ganesa Pandithar and in respect of S. No. 298/3 measuring an extent of 0.35 cents, notice was issued to Murugammal. They were also further informed that the amount would be deposited into Court u/s 30 and 31(2) of the Land Acquisition Act. The said 12(2) Notice of Award under the Land Acquisition Act was served by Senior R.I. III and it transpires that Murugammal had affixed her L.T.I. and her son also had signed in Tamil. Also that, her son Saminathan had received the Section 12(2) Notice on behalf of his father Murugappa Maistry. Unfortunately, the award amount of Rs. 14,421.86 paise was remitted into State Bank of India, Saidapet Branch, Nandanam, Chennai on 06.02.1970. It was not deposited into Court as per Section 30 and 31(2) of the Land Acquisition Act, 1894. The remittance of award amount in the Bank aforesaid is of no use and it cannot be equated to an act of compensation being paid to the concerned land owners/persons interested, in the considered opinion of this Court.
66. The main grievance of the Petitioners is that the lands belonging to Sundarammal and others were exempted and all the lands except their lands were exempted and in fact, not exempting their lands from the purview of the land acquisition proceedings amounts to discriminatory practice being adopted by the authorities concerned. Further, all the lands covered by the Notification 4.0139/61 dated 28.02.1962 were exempted except the assigned piece of land belonging to them. Furthermore, adjacent lands S. No. 298/4-B were also exempted. Added further, the definite stand of the Petitioners is that the lands of poor people cannot be taken away after granting exemption to the lands of rich people which was against the Principles of Natural Justice.
67. Continuing further, a cursory perusal of the Vol-III File, [for the period 1.7.89 to 23.7.2010 pages 757 1050] at page No. 1019 indicates that the Special Tahsildar (L.A.) III of Tamil Nadu Housing Board Schemes, Nandanam, Chennai 35 had addressed a communication in Rc. D2/967/76 dated 9.9.1996 wherein it is, inter alia, mentioned as follows:
A sum of Rs. 14,421.86 was deposited in your Bank on 7.2.70 under the head "Deposit Civil Deposit not bearing interest". Deposit for work done for public bodies or private individuals to meet out the cost of Award 6/70 dated 28.3.70 passed for the acquisition of lands measuring 1.04 acres in S. Nos. 298/1,2 & 3 of Kodambakkam Village. Out of that amount a sum of Rs. 13,770.10 being the compensation amount in Award No. 6/70 dated 28.3.70 has to be deposited into the Civil Court Deposits u/s 30 & 31(2) of the Land Acquisition Act as the City Civil Court has to apportion the amount between the owners of the land.
Perusal of this office records shows that the amount has not yet been deposited into Civil Court Deposits. Non deposit of the amount into Civil Court Deposits will contemplate Section 34 of the Land Acquisition Act which bears interest at the rate of 15% per annum.
I therefore request you to verify your records and give a certificate of availability of the amount which is lapsed to Government to enable this office to address the Government for the sanction of the amount.
I request an early reply in this matter.
68. It transpires that the land owners had constructed 40 shops and residential building with an extent of 54 cents after passing of the Award and the remaining 50 cents was kept vacant without any access. The said land is required for housing scheme to provide home to the shelterless public as per the stand taken by the 1st Respondent/Tamil Nadu Housing Board.
69. Coming to the plea that the Petitioners are being discriminated in regard to their plea for exclusion of lands in S. No. 298/2, 298/3 of Kodambakkam Village and that some other persons lands were excluded from the land acquisition proceedings, it is to be pointed out that Article 14 of the Constitution guarantees equality before Law which is a positive concept, as opined by this Court. If persons are similarly situated, then, they must be treated in a equal fashion. However, if chosen few/persons are alone given the benefit of exclusion of their lands from the purview of their land acquisition proceedings, then, it may border on the well known concept that ''All are Equal but some are more equal than others''. The words ''Equal Treatment'' presupposes its existence of similar legal foothold.
70. At this stage, this Court points out the decision
Sec. 48 of the Land Acquisition Act enables the state to withdraw proceedings of acquisition in respect of certain lands. The Supreme Court has held that in a case of withdrawal of proceedings by the State Government, that order of withdrawal need not be backed by reasons and no opportunity is to be given to the owners of the land. If the Government is reluctant to go ahead with the acquisition proceedings in respect of certain lands on certain genuine difficulties, it cannot be blamed and the State cannot be compelled to take over the land and that it can release the land from acquisition. It is well-settled that the State can exercise its powers under Sec. 48 of the Land Acquisition Act unilaterally. As such, it cannot be said that by not withdrawing the land of the petitioners, Art. 14 of the Constitution of India is affected. Nobody has got a right to come before the court for withdrawal of the acquisition under Sec. 48 of the Land Acquisition Act. The power of withdrawal under the Act is given to the Government only, under Sec. 48 of the Land Acquisition Act. The court does not think that any person has a right to come to the court and ask for a writ of mandamus to withdraw from acquisition, a piece of land under Sec. 48 of the Act.
71. Further, in the decision of the Hon''ble Supreme Court in
72. It is to be pointed out that the compensation may be said to have been ''paid'' within the meaning of Section 24(2) of the Act 30 of 2013 when the Collector or the Land Acquisition Officer has discharged his obligation and deposited the compensation amount and made that amount available to the interested person to be dealt with in terms of Sections 32 and 33 of the L.A. Act, 1894.
73. At this stage, one cannot ignore a very vital fact that as per ingredients of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), the land acquisition proceedings initiated under the Land Acquisition Act, 1894 by virtue of legal fiction are deemed to have lapsed where the award has been made 5 years or more prior to the commencement of 2013 Act and the compensation of land is not taken or compensation has not been paid. The legal fiction u/s 24(2) of Act (30 of 2013) comes into operative play as soon as the conditions specified therein are fulfilled.
74. Also that, Section 114(1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 repeals the Land Acquisition Act, 1894. Really speaking, Section 114(2) of the Act (30 of 2013) makes Section 6 of the General Clauses Act, 1897 applicable in regard to the repeal, of course this is subject to the provisions in 2013.
Conclusion and Directions:
75. As far as the present case is concerned, it is to be noted that this Court passed an order on 28.02.2012 in W.P. No. 23372 of 2006 (filed by the Petitioners) to the effect that the 1st Respondent/Secretary to Government, State of Tamil Nadu, Housing and Urban Development, Chennai 9 is to consider the petitioners representations dated 29.10.2003 and 19.06.2006 in the light of the recommendations made by the Special Commissioner and Commissioner of Land Administration, dated 08.11.1988; in the light of the documents produced by them (including the house tax and patta); and also in the light of notice of Award issued u/s 12(2) of the Act dated 28.08.1970 and pass orders on merits and in accordance with law. At this stage, on going through the impugned letter dated 18.10.2012 in Letter No. 30437/LA2(1)/09-18 of the Secretary to Government, Housing and Urban Development Department, Chennai 9, this Court opines that in the reference portion/column, there is no mention of the recommendations made by the Special Commissioner and Commissioner of Land Administration dated 08.11.1988 etc. However, it refers to the petition received from the 1st Petitioner and 2 others dated 28.03.2012; High Court''s Order dated 28.02.2012 in W.P. No. 23372 of 2006 and M.P. Nos. 2 & 3 of 2006 and the Government Letter No. 30437/LA2(1)/09-6, dated 26.06.2012. Moreover, the impugned letter dated 18.10.2012 does not deal with the recommendations of the Special Commissioner and Commissioner of Land Administration dated 08.11.1988. Therefore, it is candidly clear that the 1st Respondent, while passing the impugned order dated 18.10.2012 in Letter No. 30437/LA2(1)/09-18, had not whispered anything about the contents of the recommendations made by the Special Commissioner and Commissioner of Land Administration dated 08.11.1988. In short, the impugned letter dated 18.10.2012 is conspicuously silent about the contents of the recommendations so made by the Special Commissioner and Commissioner of Land Administration dated 08.11.1988.
76. At this juncture, this Court points out that when an executive order/an administrative order is passed by a competent authority, then, he is to indulge in imperative discussion of the recommendations made by the Special Commissioner and Commissioner of Land Administration through his letter dated 18.10.2012. Therefore, it is quite clear that the 1st Respondent has passed the impugned order in Letter No. 30437/LA2(1)/09-18 dated 18.10.2012 without adverting to the merits and demerits of the recommendations made by the Special Commissioner and Commissioner of Land Administration, in a threadbare fashion and the same in effect unerringly point out that the order of this Court in W.P. No. 23372 of 2006 was not complied with by the 1st Respondent in true letter and spirit, although the 1st Respondent, in paragraph C of the impugned letter dated 18.10.2012, had, among other things, mentioned as follows:
There is heavy demand for houses in the Chennai City. The land in question is situated in the middle of a well developed scheme of Tamil Nadu Housing Board Hence the land is absolutely required to construct MIG/HIG flats to fulfil the need of needy public. Therefore the above land is required for Tamil Nadu Housing Board for the purpose for which it was acquired.
77. It is to be pointed out that it is the duty of an Administrative/Executive Authority to traverse upon the pleadings projected/stand taken by the parties in a realistic and proper perspective fashion. Further, the concerned Administrative or Executive Authority is to primarily consider the averments, counter averments or counter pleas pleaded by the parties and finally to pass a reasoned speaking order on merits of course assigning cogent, coherent and convincing reasons. Further, it cannot be brushed aside that an unjust order may be a valid one from the point of view of an individual, who has succeeded in the subject matter in issue, but to a defeated party, the said order is an unjust one, so as to enable him/her to prosecute further proceedings in the matter in question, in the manner known to law. It is to be remembered that a reasoned speaking order on merits passed by an appropriate and competent authority certainly will have an appearance of Justice. To put it succinctly, a cryptic order, bereft of qualitative and quantitative details and also shorn of vital discussions/deliberations will naturally suffer from ''absence of an outline of necessary process of reasoning''. If an order is passed by the competent authority/appropriate authority without referring to or meeting out the recommendations made by the Special Commissioner and Commissioner of Land Administration, then, the said order is not a complete and comprehensive one, in the subject matter in issue, as opined by this Court.
78. However, on going through the contents of the impugned order passed by the 1st Respondent, this Court comes to an inevitable conclusion that since the order is not a self-contained one and also that since it does not exhibit that the 1st Respondent (Administrative Authority) had not applied his mind in a proper manner. As such, this Court, in the interest of Justice, without delving deep into the merits of the matter and also not expressing any opinion on the subject matter in issue, sets aside the impugned letter of the Secretary to Government, Housing and Urban Development Department, Chennai dated 18.10.2012 in Letter No. 30437/LA2(1)/09-18, since it is not quite in tune with the order passed by this Court in W.P. No. 23372 of 2006 wherein a categorical direction was issued to the 1st Respondent to consider the Petitioners representations dated 29.10.2003 and 19.06.2006 respectively, in the teeth of the recommendations made by the Special Commissioner and Commissioner of Land Administration dated 08.11.1988. On this ground alone, this Court remits back the entire subject matter in issue to the 1st Respondent for fresh consideration and the 1st Respondent is directed to pass a fresh speaking reasoned order on merits and on relevant considerations [uninfluenced and untrammelled with any of the observations made by this Court in this Writ Petition], in the light of the recommendations made by the Special Commissioner and Commissioner of Land Administration, through his letter dated 08.11.1988; in the light of the ingredients of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013) [Brought into force on 1.1.2014 vide S.O. 3729 (E), dated 19.12.2013, published in the Gazette of India, Ext., Pt. II, S. 3, dated 29.08.2013]; and also by adhering to the Principles of Natural Justice [by affording opportunities to the respective parties], in a fair, just and prudent fashion, within a period of eight weeks from the date of receipt of copy of this order. It is open to the respective parties to raise all factual and legal pleas, relating to the applicability or otherwise of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and also an admitted legal fiction arising thereto, before the 1st Respondent and the 1st Respondent is also directed to pass necessary orders based on the stand/pleas taken by the respective parties in the manner known to law and in accordance with law.
With the above observations and directions, the Writ Petition is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed.
