M.D. Venkatesan vs The Secretary, Housing & Urban Development Department

Mr. C.S. Karnan, J.—The short facts of the case are as follows:-

The petitioner submits that the writ petition has been filed for a declaration, to declare the draft Award No.18/1994, dated 19.08.1994 was not approved by the third respondent as required under Section 11(i)(iii) of the Land Acquisition Act, 1894, and in pursuance thereof, no final Award No.18/1994, dated 19.08.1994 was made by the fourth respondent as per Section 11(A) of the Land Acquisition Act, therefore entire proceedings stands lapsed as there is no Award made within a period of two years under Section (6) Declaration issued in G.O.Ms.No.587, dated 18.08.1992 in the eyes of law, in so far as the petitioner land is concerned pertaining to S.No.644 and 645/1 measuring an extent of 0.05.5 Hectares (0.14 cents) and 0.26.5 hectare (0.65� cents) respectively at Hosur Village.

The petitioner submits that he is the absolute owner of the property to an extent of 0.05.5 hectares (0.14 cents) and 0.26.5 hectares (0.65� cents) respectively situated in S.Nos.644 and 645/1 at Hosur Village and Taluk having purchased the property from its then owner Dr. sS. Sadasivam and Smt.Jayadevi by sale deed dated 23.10.1987 vide Doc.No.4828/1987. His vendors purchased the property from one Thiru. T.V. Sriramulu. He further submits that from the date of his purchase, he is in absolute possession and enjoyment of the property and he applied for patta before the Revenue Authorities. The petitioner further submits that the first respondent for the purpose of developing a Housing Scheme initiated Land Acquisition Proceedings on behalf of the second respondent Board for larger extent, which includes his property in S. Nos.644 and 645/1 at Hosur Village measuring 0.05.5 Hectares (0.14 cents) and 0.26.5 hectares (0.65� cents) respectively. In pursuance thereof, 4(1) notification under the Land Acquisition Act was issued in G.O.Ms.No.849, dated 21.05.1991 by the first respondent. The Declaration under Section 6 of the said Act was issued in G.O.Ms.No.532, dated 18.08.1992. The said Declaration was also published in the Tamil Dailies viz., Thina Thoothu and Vetri Malai on 20.08.1992. The abstract of the same was also propagated in the Village on 20.08.1992.

The petitioner further submits that neither in the 4(1) Notification nor in Section 6 Declaration, his name was found a place and only his vendor''s name was notified even though, he had purchased the above property which was much earlier to the acquisition proceedings. The acquisition proceedings were initiated only on 19.06.1991. Neither he nor his predecessors who are the notified parties were ever served with any of the statutory notices under the Act and they were not aware of the Land Acquisition Proceedings and no compensation amount was paid. As already stated, he purchased the property by Sale Deed dated 23.10.1987, whereas the acquisition proceedings were initiated only on 19.06.1991. He is neither aware of the acquisition proceedings during the relevant point of time nor had he been issued any notice in this regard by these respondents whatsoever. The petitioner further submits that he continued to be in possession of his property and he is the owner of the lands by virtue of the holdings in the records of the Sub Registrar Office, Hosur which stands in his name even today. Only during the month of January 2005, he came to know about the Land Acquisition Proceedings. The respondents never took possession of his property in accordance to the procedures contemplated under Section 16 of the Land Acquisition Act and more than 150 acres surrounding his lands which were also acquired since 1992 were not utilized by the second respondent-Board as on date. In such circumstances, the petitioner made a representation to the respondents on 11.02.2005, requesting them to pass appropriate orders for withdrawing /de-notifying the acquisition proceedings in so far as his land is concerned from the Scheme of Land Acquisition in the interest of Justice. Since, they have not passed appropriate orders, he filed W.P.No.12745 of 2005 before this Court and this Court by order dated 18.04.2005 directed the respondent in the above mentioned writ petition to consider the representation dated 11.02.2005 within a period of 8 weeks. In pursuance thereof, the first respondent, after a delay of 15 months, by letter dated 02.05.2006, rejected his request for re-conveyance.

The petitioner submits that by inadvertence and on the basis of ill-advice and opinion given by the then Legal Advisor, he filed W.P.No.19709 of 2006 before this Court praying "to call for the records connected with the notification issued under Section 4(1) of the Land Acquisition Act made in G.O.Ms.No.510 Adi-Dravidar and Tribal Welfare dated 02.05.1991 published in the Tamil Nadu Government Gazette dated 19.06.1991 and also the consequent declaration made under Section 6(1) of the Land Acquisition Act made under G.O.Ms.No.537, Housing and Urban Development Department, dated 18.08.1992 and published in the Tamil Nadu Government Gazette dated 18.08.1992 and the consequential award dated 19.08.1994 passed by the Special Tahsildar (LA) Housing Scheme Hosur, the fourth respondent herein in Award No.18/94 and quash the same and consequently set-aside order of the first respondent in impugned letter dated 02.05.2006 bearing letter No.13658/LA.2(2)/05-4 and quash the same by the issue of Writ of Certiorari or any order any other Writ, order or Direction in so far as it relates to the petitioner''s land of an extent of 14 cents in S.No.644 and 0.65� cents in S.No.645/1 of Hosur Village, Hosur Taluk, Krishnagiri District". The said writ petition was dismissed by this Court by order dated 30.09.2008 on the ground of delay and laches and also on the basis of maintainability of writ petition to challenge the acquisition proceedings after passing of Award. Thereafter, Writ Appeal No.677/2010 filed by the petitioner against the order dated 30.09.2008 was also dismissed, confirming the learned Single Judge order. The petitioner further submits that even the Special Leave Petition No.28279/2010 preferred by the petitioner against W.A.No.677/2010 before the Hon''ble Supreme Court was dismissed on 08.11.2010 on the sole ground of delay and laches. The petitioner further submits that during the pendency of the writ appeal No.677 of 2010, he came to know from the communication received from the Special Tahsildar (Land Acquisition), Tamil Nadu Housing Board, Bagalur Road, Hosur, under the Right to Information Act, 2005 vide Proceedings No.Na.Ka.No.1132/06/R2, dated 05.01.2010 and ROC 663/90 dated 02.07.2010 that the Draft Award No.18/1994 was not approved /signed by the third and fourth respondents as required and contemplated under Section 11(i)(iii) and 11(A) of the Land Acquisition Act.

The petitioner further added that the documents furnished under the Right to Information Act, 2005 would explicitly reveal details that though Draft Award was signed by the fourth respondent on 12.08.1994 and forwarded to the State Government''s approval, the State Government has carried out in-numerous corrections and major modifications and the same was put-forth before the third respondent on 18.08.1994 for necessary approval/signature in the capacity of Competent Authority. But, the Competent Authority, the third respondent did not approve it in his own hand by affixing his signature, whereas, the staff/Selection Officer by name A. Ramakrishnan has endorsed it on 19.08.1994, which cannot be considered as an approval given by the Competent Authority under the Act. Irrespective of the fact that the draft award was not approved by the third respondent under his signature, the fourth respondent if he had believed that there is approval, on its receipt, ought to have carried out corrections made in the Draft Award and prepared a final award under his signature with the date 20.08.1994 as corrected in the draft award. Therefore, the fourth respondent also failed to make an award by signing the same as contemplated under Section 11(A) of the Land Acquisition Act. As such, from the information obtained under RTI Act, it is evident that Draft Award No.18/1994 dated 19.08.1994 was neither approved/signed by the third respondent nor Award No.18/1994 dated 19.08.1994 was passed by the fourth respondent as required under Section 11(A) of the Land Acquisition Act. The petitioner further submits that the statute contemplates that the fourth respondent shall make an Award under Section 11 within a period of two years from the date of publication of declaration. The statutory period of two years expired on 19.08.1994 after three modes of service of notification under Section 6 of the Act. In the present case, these documents obtained from the Right to Information Act, 2005 will clearly establish the fact that the Draft Award was not approved/signed by the third respondent and the fourth respondent thereby failed to make Award No.18/1994, dated 19.08.1994 as required under law. Hence, as per Section 11(A) of the Land Acquisition Act, the entire acquisition proceedings stand lapsed. The petitioner further submits that since the respondents failed to pass Award No.18/1994, as contemplated under Section 11(A), no notice under Section 12(2) were prepared and served and no compensation was deposited by the fourth respondent under Section 30 before the Krishnagiri Subordinate Court till March 2010. The petitioner further submits that the fourth respondent by his letter No.Na.Ka.295/2005/R2, dated 19.05.2005 to the second respondent has informed that the possession of the acquired lands in Survey Nos.644 and 645/1 was not taken legally from the landowners, but possession was handed over to the second respondent-Board on 12.12.1994 on paper. The said communication has been obtained by him under the Right to Information Act, 2005. The respondents had not followed the mode of taking possession under Section 16 of the Act and have taken possession only on paper. It is once again submitted that the lands are vacant and he continues to be in possession as on date and the second respondent-Board has not made any development activity in his lands or in the vicinity for more than 16 years.

The petitioner further submits that the relief claimed in the present writ for a Declaration that the Award No.18/1994, dated 19.08.1994 stands lapsed under Section 11(A) of the Land Acquisition Act, 1894 was neither pleaded nor agitated in the earlier proceedings before any Court and it is prayed for the first time before this Court. Only on 05.01.2010, he came to know that the Award was not approved and signed by the Competent Authority, viz., the third and fourth respondents, which information was obtained by him under the Right to Information Act, 2005. The petitioner is advised that once the acquisition proceedings have lapsed in view of Section 11(A) of the said Act, there is no acquisition proceedings pending with regard to his land in the eye of law. Any acts and deeds of interference by the respondents on the basis of lapsed acquisition proceedings is illegal and without authority of law. Since, the respondents treat his land as acquired land and on which basis they continue to interfere with his possession and enjoyment of his proprietary right, he is forced to come before this Court, under Article 226 of the Constitution of India for a Writ of Declaration, that the Award No.18/1994, dated 19.08.1994 stands lapsed. Hence, the petitioner has filed the above writ petition.

The second respondent has filed a counter statement and resisted the above writ petition. The respondent submits that the notification under Section 4(1) of the Land Acquisition Act was approved by the Government vide G.O.Ms.No.349 of H.U.D. dated 21.05.1991 and the same was published in the Tamil Nadu Government Gazette on 19.06.1991. The paper publication was also made in the Two Tamil Dailies on 26.07.1991 and the locality publication was also made in the Village on 21.08.1991. Thereafter as per Land Acquisition Act, within 30 days of Section 4(1) Notification it was published. The following persons Tmt. Unnamalai and Janaki had made objection to acquire the land. The objections filed by Tmt. Unnamalai and Janaki were rectified. Further, the Land Acquisition Officer fixed the 5(A) enquiry on 23.10.1991 and at the time of enquiry, the following persons had appeared for enquiry and filed their objections to acquire the lands:

1.

Tmt.Unnamalai, W/o. Duraisamy

- Hosur

2.

Tmt.Umadevi, W/o. Muralidharan

- Mathigiri

3.

Thiru Veeranna, S/o. Bolappa

- Chettipalli

4.

T.M.Ramamoorthy, S/o.Munusamy Chetty

- Mayachandram

The respondent further submits that the objection filed by the above persons were overruled and D.D. under Section 6 was sent by Land Acquisition Officer to Government and the same was approved by Government vide G.O.Ms.No.537/HUDD, dated 18.08.1992. The same was published in the Thinakaran and Vetrimalai on 20.08.1992 and on the same day, locality publication was also made in the village. The draft declaration under Section 7 of the Land Acquisition Act was also approved by the G.O. vide its letter No.51663/92, HUDD dated 28.09.1992 and published in the Government Gazette on 28.09.1992. After serving the necessary notices i.e., 8(1), 10, 9(3), vide L.A.O. Office ROC 663/90, dated 01.07.1994, the award enquiry was conducted by the LAO on 25.07.1994. After observing all formalities, the LAO passed the award vide award No.18/1994 dated 20.08.1994. Prior to passing of award, the award amount for a sum of Rs.3,95,660/- was remitted to Land Acquisition Officer vide Board''s Memo No.LA II(4)/27198/92 dated 06.03.1994 on 17.03.1994. The Land Acquisition Officer had not deposited the amount of Rs.1,17,126/- for the lands in S.F.No.644, 645/1. The Board once again sanctioned the award amount for a sum of Rs.1,17,126/- and the same was deposited to the Land Acquisition Officer by the Executive Engineer and Administrative Officer, Hosur, on 15.03.2010. Then, the Land Acquisition Officer had deposited the amount under Section 30 of Land Acquisition Act, on the file of Sub Court, Hosur.

The respondent further submits that the petitioner stated that the lands were purchased prior to the approval of 4(1) and the notices of Land Acquisition Proceedings were neither served to him nor to the vendor of the property at the time of the 4(1) till date. The reason for this is because patta transfer for the above lands was not made in the name of the petitioner and after purchase by the petitioner, it is in the name of the person who sold the property to the petitioner. Hence, notices were not served to the petitioner as his name was not recorded in the revenue register. Hence, the question of notice not served to the petitioner (or) vendor does not arise. The respondent further submits that after passing the award, the lands were handed over to TNHB on 12.12.1994 by the LAO and the layout was prepared by TNHB and approval for the same was got from the Competent Authority vide DTCP LP No.231/2002. In the approved layout, the lands mentioned by the petitioner were earmarked as commercial plot and road. In the meantime changes were made in the revenue records in the name of Tamil Nadu Housing Board and the land was transferred in the name of Tamil Nadu Housing Board in the revenue records as patta No.444 of Hosur Village as per Taluk 8A file No.843 in the "A"Registers by Taluk S.I.S. on 15.12.1994 itself. The respondent further submits that TNHB were not able to implement comprehensive scheme due to Court cases covered to the adjacent lands to the S.No.644 and 645/1 and after completion of Court cases to the adjacent land of S.Nos.644 & 645/1, the comprehensive scheme will be taken up by TNHB. In view of avoiding and to safeguard the property bearing S.No.644/645/1 of Hosur Village, from encroachment by some other persons, the TNHB put a fencing all around to above costing Rs.88,960/- for which estimate was also approved by the competent authority vide estimate No.HHUR 21/2009-2010.

The respondent further submits that as on date, the patta was not transferred in the petitioner''s name and all notices regarding Land Acquisition Proceedings were sent to the patta holder whose name was previously available in the revenue records. The compensation amount for the lands mentioned by the petitioner were deposited to the Land Acquisition Officer prior to passing of award i.e. 17.03.1994 itself. Hence, the plea of the petitioner that he had applied for patta before the Revenue Authorities is not correct. The respondent further submits that the Tamil Nadu Housing Board implemented the schemes in a phased manner. In this scheme an area to an extent of 28.42.0 hectares were taken over from LAO and development scheme were completed in the year 2000 for 70.22 acres. After developing above said lands, houses were also constructed and allotted to various category of public. In the particular lands in S.F.Nos.644 and 645/1 which was taken over from the LAO on 12.12.1994 necessary transfer were made in the name of TNHB, with patta No.444 of Hosur Village assigned by Revenue Authorities. The fencing work was also completed around this S.No.644 & 645/1 of Hosur Village to safeguard the property from encroachments as these lands of S.No.644 & 645/1 was in possession of Tamil Nadu Housing Board.

The respondent further submits that this Court had dismissed the writ petition in W.P.No.19709/2006 and W.A.No.677/2010 filed by the petitioner. Thereafter, the petitioner had filed SLP.No.28279/2010 before the Hon''ble Supreme Court and the same has been dismissed by the Hon''ble Supreme Court. The petitioner could not maintain this writ petition on the ground of delay and laches. The respondent further submits that the possession in S.F.No.644 and 645/1 of Hosur Village was taken over from the LAO on 12.12.1994 by Tamil Nadu Housing Board and necessary name transfer was also made in the revenue records in the name of Tamil Nadu Housing Board. The Tamil Nadu Housing Board have fenced the property and possession is with Tamil Nadu Housing Board as on date. Hence, the plea of the petitioner that the respondent had treated this land as acquired land on which basis the respondent is continuing to interfere with the petitioners land which is said to be in possession and enjoyment of the petitioner is not correct. Hence, the respondent entreats the Court to dismiss the above writ petition.

The highly competent senior counsel Mr.R.Thiyagarajan appearing for the petitioner submits that the petitioner is the absolute owner of the property to an extent of about 80 cents comprised in Survey Nos.644 and 645/1 at Hosur Village. The said property had been purchased in the year 1987. From the date of purchase he is in possession and enjoying the said property. Further, the fourth respondent had issued a notification under Section 4(1) of the Land Acquisition Act. Subsequently, a declaration was published under Section 6 of the Act. In the said both notifications, the petitioner''s name was not found, even though all the relevant records including revenue records from the year 1987 has been mutated in the name of the petitioner. The notification for acquiring the subject property was issued in the year 1991. As such, the respondents have committed lapse for acquiring the petitioner''s cultivable land. Further, the compensation has not been paid to the petitioner and the possession had also not been taken by the respondent. As such, the acquisition proceedings pertaining to the petitioner''s land is not valid under law. Further, the requisitioning body, viz., Tamil Nadu Housing Board had not utilized the petitioner''s land for implementing the Neighbourhood Scheme after a lapse of 23 years. As such, the petitioner is entitled to get a remedy under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re-Settlement Act 2013, since as on date, the compensation had not been paid and possession was not taken from the petitioner. Further, the petitioner had made representation to the respondents in the year 2005 to cancel the so-called acquisition proceedings and reassignment orders may be passed. The same was rejected by the respondents herein.

The highly competent senior counsel appearing for the petitioner further submits that the petitioner had obtained information from the fourth respondent herein, under the Right to Information Act. It reveals that the draft award No.18/1994 was not approved. As such, there are shortcomings committed by the respondents in their acquisition proceedings. Further, the compensation had not been deposited before the Revenue Authorities or concerned Sub Court. The Principal Secretary and Commissioner of Land Administration, who is attached to the Land Administration Department had sent a reply to the petitioner under the Right to Information Act stating that the amendment to Section 11(i) of the Land Acquisition Act 1894 was not issued. Further, the Special Tahsildar/fourth respondent herein had informed the petitioner in his proceedings dated 20.12.2010 stating that as per Section 16 of the Old Act, there is no records regarding taking over possession of the petitioner''s land. Hence, the highly competent senior counsel entreats the Court to allow the writ petition.

The highly competent Additional Government Pleader Mr. M.S. Ramesh appearing for the respondents 1, 3 and 4 submits that the first respondent had issued a G.O. for acquiring the petitioner''s land and others land which were adjacent to the petitioner''s land. On the strength of G.O. issued by the first respondent, the fourth respondent had issued a notification under Section 4(1) of the Act. After publication, an enquiry was conducted under Section 5(A) of the Act. Thereafter, a draft declaration was also published. After following the above procedures, the award had been passed in the year 1994 and the same was approved by the third respondent herein. Thereafter, the compensation amount had been deposited before the Sub Court under Section 30 of the Old Act on 15.03.2010. The fourth respondent had handed over the acquired land of the petitioner to the second respondent herein. The highly competent Additional Government Pleader further pointed out that the acquisition proceedings have been initiated by the respondents 1, 3 and 4 after strictly adhering to the Land Acquisition Act, 1894. Therefore, there is no lapse on the side of the respondents. Hence, the petitioner cannot claim relief under the New Act also.

The highly competent counsel Mr. V. Anandhamoorthi appearing for the second respondent submits that as per the G.O issued by the first respondent, the fourth respondent had initiated Land Acquisition Proceedings under the Old Act for acquiring the petitioner''s land and adjacent lands for forming the Neighbourhood Housing Scheme at Hosur. Four persons/landowners mentioned in the counter statement had appeared before the fourth respondent for an enquiry and made their objection. The same was overruled and draft declaration was published after obtaining approval from the third respondent herein. The fourth respondent had passed an Award No.18/1994, dated 20.08.1994. Prior to passing the award, the award amount was remitted to the Land Acquisition Officer. However, the said award amount had not been deposited in the year 1994. Subsequently, the compensation amount had been deposited in the Sub Court, Hosur on 15.03.2010. Further, the notification under Section 4(1) had been published in the name of the landowners as per Revenue Records in the year 1994. During the relevant period, the petitioner had not mentioned that all the Revenue Records are in his name. Hence, the notice was not served on the petitioner. However, after passing the award, the acquired lands were handed over to Tamil Nadu Housing Board on 12.12.1994 by the fourth respondent herein. After assigning the acquired land to the Housing Board, the Housing Board had prepared a layout and the same had been approved by the Town and Country Planning Department. The acquired lands had been mutated in the name of Tamil Nadu Housing Board in all the relevant records. The Neighbourhood Housing Scheme had not been implemented due to various cases filed by the petitioner and other landowners. Now, the second respondent is taking speedy action for implementing the said scheme and the Housing Board has also put up a fencing around the acquired land. The fourth respondent had acquired lands to an extent of 28.42 hectares for the said scheme and houses were constructed. Besides some plots had been allotted to various categories of the general public. The petitioner had challenged the acquisition proceedings before this Court and the same was dismissed. Against the dismissal order, an appeal had been filed, which had also been dismissed. Subsequently a Special Leave Petition filed before the Hon''ble Supreme Court was also dismissed. Therefore, the present writ petition is not maintainable.

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

(i) The petitioner had purchased the land to an extent of 0.14 cents and 0.65� cents comprised in Survey Nos.644 and 645/1 at Hosur Village under a registered sale deed bearing No.4828/1987, on the file of Sub Registrar, Hosur, dated 23.10.1987. As such, the writ petitioner is absolute owner of the property. The fourth respondent had not scrutinized the title deeds pertaining to the petitioner''s land through concerned Sub Registrar''s Office. The fourth respondent had initiated Land Acquisition Proceedings on the third party and the same was admitted by the second respondent in his counter statement. Therefore, the respondents have not strictly adhered to the Land Acquisition Proceedings for acquiring the petitioner''s land under the Old Act, 1894.

(ii) The counter statement filed by the second respondent reveals that the compensation amount of a sum of Rs.1,17,126/- for the petitioner''s land had not been deposited after passing the award dated 17.03.1994. Thereafter, the Administrative Officer, who is attached to the Tamil Nadu Housing Board had deposited the said amount on 15.03.2010, on the file of Sub Court, Hosur. The act of the second respondent can only be considered as an afterthought in order to occupy the land which is not permissible under law.

(iii) The Land Acquisition Proceedings had been initiated in the year 1991 and the said acquisition proceedings had been completed in the year 1994. However, the compensation amount had been deposited only in the year 2010. So, it is evident that only after, a lapse of around 15 years, the compensation amount had been deposited. Further, the second respondent had not implemented the Neighbourhood Housing Scheme over the petitioner''s land even after a lapse of 23 years. As such, the purpose for which, the scheme had been initiated has been nullified.

(iv) The second respondent herein had sent a communication in his proceedings dated 22.11.2010 stating that the petitioner''s land had not been handed over to the Housing Board by the Land Acquisition Officer, but, the second respondent in his counter statement had stated that the petitioner''s land was handed over to them by the Land Acquisition Officer on 12.12.1994. So, the view of the respondents are not in consonance with the stand taken by them earlier. Therefore, there is serious lapse on the part of the respondents, who are attached to the State Machinery and the power of State Machinery should not be exercised against the petitioner for acquiring his own property. Besides, the fourth respondent has openly admitted in his proceedings stating that there is no records for taking over the petitioner''s property after acquisition proceedings. As such, the Land Acquisition Proceedings pertaining to the petitioner''s land is unsuitable for operation.

(v) At the time of filing the writ petition, the New Act, viz., Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re-Settlement Act 2013 has not been enacted, but at the time of hearing the case, the New Act is in force and as such, the petitioner is entitled to receive relief under Section 24 (2) of the New Act 30 of 2013, since the compensation amount is not paid to the petitioner and the possession had not been taken over from the petitioner.

Considering the facts and circumstances of the case and arguments advanced by the highly competent counsels on all sides and on perusing the typed set of papers of all parties and this Court''s view mentioned above as (i) to (v), this Court quashes the entire proceedings pertaining to the petitioner''s land comprised in S.No.644 and 645/1 measuring to an extent of 0.05.5 Hectares (0.14 cents) and 0.26.5 hectare (0.65� cents) respectively at Hosur Village. Consequently, the petitioner''s land is discharged from the Acquisition Proceedings.

In the result, the above writ petition is allowed. There is no order as to costs. Consequently, connected miscellaneous petitions are closed.