IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.12.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.30687 of 2008 and M.P.NOs.1 and 2 OF 2008 P.Ammasi .. Petitioner Vs. 1.The State of Tamilnadu, rep. By its Secretary to Government, Housing and Urban Development Department, Fort St. George, Chennai-600 009. 2.The Special Tahsildar (Land Acquisition), Salem Neighbourhood Scheme, Salem-8. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the notification under Section 4(1) of the Land Acquisition Act in G.O.Ms.No.902, dated 31.5.1991 and a declaration under Section 6(1) of the Act in G.O.No.445 dated 16.7.1992 and to quash the same in respect of petitioner's land in survey No.90/2A to an extent of 0.53.0 hectares situated at Kotta Goundam Patti village, Omalur Taluk, Salem District. For Petitioner : Mr.M.Elango For Respondents : Mr.R.Neelakantan, GA - - - - ORDER
The petitioner has filed the present writ petition seeking to challenge the notification issued under Section 4(1) of the Land Acquisition Act, 1894 (Central Act 1/1894), dated 31.5.1991 as well as declaration made under Sectin 6(1) in G.O.Ms.No.445, Housing and Urban Development Department, dated 16.7.1992 and quash the same in respect of the petitioner’s land in Survey No.90/2A to an extent of 0.53.0 hectares situated at Kottagoundampatti village, Omalur Taluk, Salem District.
2.Acquisition of land in the petitioner’s village was made for a public purpose, i.e. for construction of houses by Tamil Nadu Housing Board for the Salem Neighbourhood Scheme. The petitioner’s name finds a place in Section 4(1) notification as well as Section 6 declaration. The petitioner had not explained as to how he had not objected to acquisition of land. He had also not filed any writ petition immediately when the proceedings were initiated by respondents. In fact, as per the admission of the petitioner, Form No.9 was issued intimating the award under Section 12(2) in favour of the petitioner and his brother one Subramani.
3.It is the case of the petitioner that possession is still in the hands of the petitioner and patta obtained from the respondents shows that even during 2008 in the name of the petitioner. It is also seen from the records the petitioner has filed a writ petition being W.P.No.14406 of 1991, challenging 4(1) notification, dated 31.5.1991 made in G.O.Ms.No.902, Housing and Urban Development department, dated 31.5.1991. The said writ petition came to be dismissed by an order of this court, dated 30.1.2002 after holding that it was not open to the petitioner to challenge the notification issued under Section 4(1). The petitioner along with three others preferred a writ appeal being W.A.No.1241 of 2002. A division bench of this court dismissed the writ appeal on 10.8.2006, confirming the order passed by this Court. Therefore, the petitioner was very much aware of proceedings initiated under Section 4(1).
4.Subsequenlty, when Section 6 declaration was issued, the petitioner never approached this court within a reasonable time even when the award was passed. It was his case that the award was not made within a period of two years from the date of publication of declaration under Section 6 of the Act. It was also contended that because of that, the acquisition had elapsed on 16.7.1994. It was also stated that no prior approval was obtained and Section 3(f)(vi) of the Act was not followed.
5.Pending the writ petition, the petitioner did not get any benefit of an interim order. Only notice was ordered to the respondents. On notice from this court, the respondents have filed a counter affidavit, dated 12.5.2009. It was stated in the counter affidavit that the lands were acquired for housing board and notification under Section 4(1) was approved by the Government. Paper publication was also made on 11.7.1991, which was also published widely in the locality on 22.7.1991. Section 5-A enquiry was conducted on 10.10.1991 at Karuppur. Subsequently, remarks were called for from the Housing Board and a reply received from the requisitioning body was communicated to the objector. It is at this stage, W.P.No.14406 of 1991 was filed and a stay was obtained on 10.10.1991. Section 3(b) enquiry was conducted on 28.11.1991 and the objection was overruled by the acquisition officer on 30.11.1991 for the remaining lands which are not covered by the High Court order.
6.Subsequently, draft declaration under Section 6 was approved by the Government to an extent of 14.26.5 hectares in g.O.Ms.No.445, Housing and Urban Development Department, dated 16.7.1992 and published in the Government gazette on 17.7.1992. Before publication of draft declaration, land owners filed W.P.No.1591 of 1992 and the same was dismissed on 11.2.1992. Once gain land owners filed W.P.No.18909 of 1992 to stay the operation under Act 5/1992 in respect of declaration. The petitioner’s land was sought to be covered in the writ petition. Interim stay was also obtained in the writ petition. Leaving the area covered by such notification, in the remaining lands, the action was approved by the Government in letter dated 24.6.1994. It was also published in the gazette and an award No.2/94-95, dated 11.7.1994 was also passed including the petitioner’s land. The area covered by the interim order was omitted and finally, W.P.No.18909 of 1992 was dismissed on 27.1.1995. The land of the petitioner was handed over to the Housing Board on 7.2.1996. Subsequently, a lay out was prepared for approval during 12/2008 and it is still pending.
7.It was stated that in the acquisition proceedings, an award was also passed for a sum of Rs.76,819/- and was deposited in the Sub Court, Sankari. The petitioner participated in the enquiry and opposed to the acquisition. Subsequent to the handing over of property, the housing board has also constructed 410 houses in that area. Out of 410 houses, all the houses were sold and only a few Government quota houses are yet to be allotted. The land is situated opposite to Periyar University abutting National Highways No.7 and even for the remaining land, a lay out has been proposed. The possession has also been handed over to housing board on 7.2.1996. The housing board has also paid the award amount and it was deposited in Sub Court, Sankari. Therefore, there is no case for the petitioner to challenge the same.
8.It must be noted that though the petitioner claims that he was in possession of land and was attempting to show that patta was granted in his favour, the same cannot be accepted. Once possession has been handed over to the housing board and they have also proposed lay outs, it is not open to the petitioner to still claim that he is in possession of the land by showing that patta still stands in his name. On the other hand, the patta produced by the petitioner cannot be a proof of the petitioner’s ownership. By virtue of Central Act 1/1894, the erstwhile owner cannot claim either possession or ownership when a valid award has been passed and upheld by this Court.
9.Further regarding the claim for possession, it is also necessary to refer to the judgment of the Supreme Court in Tamil Nadu Housing Board Vs. Viswam (D) by Lrs reported in JT 1996 (2) SC 549. In that case, after considering the judgment in Narayan Bhagde’s case, this Court observed that while taking possession of a large area of land (in this case 339 acres) a pragmatic and realistic approach had to be taken. This Court then examined the context under which the judgment in Narayan Bhagde’s case had been rendered and held as under:
“It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperative in taking possession of the land.”
10.The said judgment came to be quoted with approval and followed by the Supreme Court recently in Sita Ram Bhandar Society, New Delhi Vs. Lt.Governor, Govt. of N.C.T. Delhi and others reported in JT 2009 (12) SC 324, where after referring to Viswam’s case (cited supra), in paragraph 9, it was observed as follows:
“9.It would, thus, be seen from a cumulative reading of the aforesaid judgments, that while taking possession of a large area of land with a large number of owners, it would be impossible for the Collector or the Revenue Official to enter each bigha or biswas and to take possession thereof and that a pragmatic approach has to be adopted by the Court. It is also clear that one of the methods of taking possession and handing it over to the beneficiary department is the recording of a Panchnama which can in itself constitute evidence of the fact that possession had been taken and the land had vested absolutely in the Government.”
11.In the light of the above, the petitioner’s belated attempt to challenge the acquisition proceedings is misconceived and bereft of any merit. Accordingly, the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petitions also stand dismissed.
02.12.2009
Index : Yes
Internet : Yes
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To
1.The Secretary to Government,
The State of Tamilnadu,
Housing and Urban Development Department,
Fort St. George,
Chennai-600 009.
2.The Special Tahsildar (Land Acquisition),
Salem Neighbourhood Scheme,
Salem-8.
K.CHANDRU, J.
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PRE DELIVERY ORDER IN
W.P.NO.30687 of 2008
02.12.2009
