High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 07.08.2008Coram :THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANand THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJAWrit Appeal No.4093 of 20041. State of Tamil Nadu, represented by itsSecretary to Government, Housing and Urban Development Department, Fort St. George, Chennai 9.2. The Special Tahsildar, Land Acquisition, Neighbourhood Scheme, Ayyan Thirumaligam Road, Salem 636 008. Appellantsv.1. Pramila Rajaram2. R.Indira Saratchandra3. R.Mahesh Chandra4. Shalini Subash5. Priyanka (Minor), rep. by her father & natural guardian R.Mahesh Chandra6. Minor Yashwant, rep. by next friend & guardian mother Shalini Subash7. Tamilnadu Housing Board, rep. by its Chairman and Managing Director, Anna Salai, Madras 35.RespondentsThe appeal is filed under clause 15 of the Letters Patentagainst the order of a learned single Judge of this Court dated29.01.2004 made in writ petition No.19284 of 1996 to issue a writof Certiorari calling for the records relating to the notificationin G.O.Ms.No.987 Housing and Urban Development Department, dated01.11.1982 and published in Government Gazette dated 24.11.1982followed by the declaration under G.O.Ms.No.148, Housing and UrbanDevelopment dated 2.2.1985 and published in Government Gazette on20.2.1984 and quash the same as lapsed in so far it related to theland belonging to the petitioners described in the Annexure to thewrit petition are concerned. https://hcservices.ecourts.gov.in/hcservices/ For appellant:Mr.K.Balasubramanian,Special Government PleaderFor respondents:Mr.Ratna Sabapathy (R4 to 6)Mr.K.Chelladurai (R7-TNHB)JUDGMENTK.RAVIRAJA PANDIAN, J.The appeal is filed by the Government of Tamilnadu representedby its Secretary to Government, Housing and Urban DevelopmentDepartment and the Special Tahsildar, Land Acquisition,Neighbourhood Scheme, Ayyan Thirumaligam Road, Salem,questioning the order of this Court dated 29.01.2004 made in writpetition No.19284 of 1996 wherein and whereby the entire landacquisition proceedings initiated in G.O. Ms. No.987 Housing andUrban Development Department dated 01.11.1982 has been set aside onthe ground that the award passed on 10.12.1996 was beyond theperiod prescribed under section 11A of the Land Acquisition Act.2. The facts are : The proceedings for acquisition of land forHousing scheme was initiated by the Government in G.O. Ms. No.987Housing and Urban Development Department dated 01.11.1982, andpublished in the Government Gazette on 24.11.1982, followed bydeclaration under section 6 of the Act in G.O. Ms. No.148 dated02.02.1985 published in the Government Gazette on 20.02.1985.Aggrieved by the proceedings, the respondent herein filed writpetition No.3646 of 1987 and obtained an interim order of stay ofall further proceedings. The writ petition was finally allowed on24.10.1991 and the appeal filed by the appellant herein in writappeal No.406 of 1994 came to be allowed by the Division Bench ofthis Court by its order dated 29.08.1996. Subsequently, the awardcame to be passed on 10.12.1996. Thereafter, the petitioner filedthe present writ petition on 24.12.1996 seeking for issuance ofwrit of certiorari to call for the records relating to the 4(1)notification in G.O. Ms. No.987 Housing and Urban DevelopmentDepartment dated 01.11.1982, and the declaration under section 6of the Act in G.O. Ms. No.148 dated 02.02.1985 and quash the sameas lapsed in so far as it related to the land belonging to therespondent.3. It was contended before the writ Court that the localpublication of the declaration under section 6 of the LandAcquisition Act was made on 22.05.1985 and therefore, in terms ofsection 11A of the Land Acquisition Act, the award should have beenpassed within a period of two years from the said date and if noaward is made within that period, the entire proceedings for theacquisition of land shall lapse. In the present case, because ofthe pendency of the writ petition and writ appeal, the periodbetween 08.04.1987 the date on which the stay was granted in the https://hcservices.ecourts.gov.in/hcservices/ writ petition, and 29.08.1996, the date on which the writ appealwas allowed is to be excluded in calculating the period oflimitation. As on the date when the order of stay was passed, theappellant was only left with only 43 days to pass an award. Theaward ought to have been passed on or before 12.10.1996. However,the award has been passed on 10.12.1996 and hence is hit by section11A of the Act. 4. The said contention has been countered by the appellantherein that the period of limitation has to be calculated only from01.11.1996, the date of receipt of the copy of the order made inthe writ appeal, and if so calculated, the award passed on10.12.1996 is well within the period of limitation. The writ Courttook the view that the date of receipt of the order cannot be takenand it is only the date on which the order came to be passed in thewrit appeal to be taken for reckoning the period of limitation. Onthat ground the writ Court has come to the conclusion that undersection 11A of the Act the entire proceedings is lapsed because theaward has been passed after the period of limitation prescribedunder section 11A of the Act. The correctness of the same iscanvassed before this Court.5. Learned counsel for the appellant contended that the awardhas been passed on 10.12.1996. As per the judgment of the SupremeCourt in the case of Padmasundara Rao v. State of Tamil Nadu, AIR2002 SC 1334, the award is saved. Further, the Supreme Court, inseveral number of cases held that after passing of the award, theland owner cannot challenge the award proceedings. On that groundand having regard to the public interest involved in this case, heargued that the order of the learned single Judge has to be setaside. Learned counsel for the respondent argued for sustaining theorder of the learned single Judge as the period of limitationprescribed under section 11A of the Act stares on the award.6. Heard the learned counsel on either side and perused thematerials available on record.7. The issue as to which of the dates – the date of passing ofthe order or the date of receipt of a copy of the order – has to betaken into consideration, has been decided by the Supreme Court inthe case of Narasimhaiah v. State of Karnataka, (1996) 3 SCC 88,wherein it was held that running of limitation should be countedfrom the date of the order of the Court received by the LandAcquisition Officer. The said judgment was rendered by the apexCourt on 17.01.1996. The ratio as laid down by the Supreme Courtwas the law of the land when the award was passed on 10.12.1996.Hence, the reasoning stated by the Writ Court is not in accordancewith the ratio laid down by the Supreme Court. Of-course, it istrue that the said decision has been over-ruled by the ConstitutionBench of the Supreme Court in the case of Padmasundara Rao v. Stateof Tamilnadu, AIR 2002 SC 1334. The said judgment was renderedon 13.03.2002. Even in the judgment accepting the contention of https://hcservices.ecourts.gov.in/hcservices/ the State, the Supreme Court has held that the said judgment shalloperate prospectively to the extent that the cases where award hasbeen passed and the compensation had been paid shall not bereopened by applying the ratio of the said judgment. In this case,the award has been passed on 10.02.1996 and the amount has beendeposited in civil deposit well prior to the rendering of thejudgment.8. We are of the view that the acquisition proceedings istotally saved in view of the observations made in the judgment inthe case of Padmasundara Rao cited supra and the prospectivity ofthe said judgment. 9. The apex Court, in the case of State of T.N. v. L.Krishnan, (1996) 1 SCC 250, has held as follows : "45. There remains the last ground assigned by theHigh Court in support of its decision. The High Courthas held that the non-compliance with sub-rules (b) and(c) of Rule 3 of the Rules made by the Government ofTamil Nadu pursuant to Section 55(1) of the LandAcquisition Act vitiates the report made under Section5-A and consequently the declarations made underSection 6. The said sub-rules provide that on receiptof objections under Section 5-A, the Collector shallfix a date of hearing to the objections, and givenotice of the same to the objector as well as to thedepartment. It is open to the department to file astatement by way of answer to the objections filed bythe land-owners. The submission of the writ petitionerswas that in a given case it may well happen that in thelight of the objections submitted by the land-owners,the department concerned may decide to drop theacquisition. Since no such opportunity was given to thedepartment concerned herein, it could not file itsstatement by way of answer to their objections. This issaid to be the prejudice. We do not think it necessaryto go into the merits of this submission on account ofthe laches on the part of the writ petitioners. Asstated above, the declaration under Section 6 was madesometime in the year 1978 and the writ petitionerschose to approach the Court only in the years 1982-83.Had they raised this objection at the proper time andif it were found to be true and acceptable, opportunitycould have been given to the Government to comply withthe said requirement. Having kept quiet for a number ofyears, the petitioners cannot raise this contention inwrit petitions filed at a stage when the awards wereabout to be passed." https://hcservices.ecourts.gov.in/hcservices/

10. In the case of Executive Engineer, Jal Nigam CentralStores Division v. Suresha Nand Juyal, (1997) 9 SCC 224 the aboveproposition of law has been reiterated in paragraph 5 of thejudgment: "5. Obviously, after consideration of all the objectionsand rejection thereof, declaration under Section 6 waspublished. As stated earlier, the award was made andsymbolic possession was taken on 17-12-1988. Under thecircumstances, the land stood vested in the State free fromall encumbrances. After the proceedings had become final,the writ petition came to be filed on 19-5-1989. The merefact that due to lapse of time no action was taken after thefiling of the writ petition, does not give ground forinterference. The further fact that public purpose must havebeen served by constructing the quarters for the officerselsewhere, is without any substance. The mere fact that onaccount of the pending litigation, no construction was made,is no ground to say that notification under Section 4(1) wasvitiated by any error of law; equally, increase in theprices of the lands is no ground."11. In the case of Municipal Corpn. of Greater Bombay v.Industrial Development Investment Co. (P) Ltd., (1996) 11 SCC 501,the apex Court has held in "29. It is thus well-settled law that when there isinordinate delay in filing the writ petition and when allsteps taken in the acquisition proceedings have becomefinal, the Court should be loath to quash thenotifications. The High Court has, no doubt,discretionary powers under Article 226 of theConstitution to quash the notification under Section 4(1)and declaration under Section 6. But it should beexercised taking all relevant factors into pragmaticconsideration. When the award was passed and possessionwas taken, the Court should not have exercised its powerto quash the award which is a material factor to be takeninto consideration before exercising the power underArticle 226. "12. The apex Court in the case of Municipal Council,Ahmednagar v. Shah Hyder Beig, (2000) 2 SCC 48, has heldas follows : "In any event, after the award is passed no writpetition can be filed challenging the acquisition notice oragainst any proceeding thereunder. ................"18. Similar is the view in an earlier decision of thisCourt in the case of Municipal Corpn. of Greater Bombay v. https://hcservices.ecourts.gov.in/hcservices/ Industrial Development Investment (P) Ltd., (referred tosupra). 13. In the case of Tej Kaur v. State of Punjab,(2003) 4 SCC485, the Supreme Court observed as under :"Moreover, Section 6 declaration was made on 18-3-1992and the award was passed on 15-3-1994. The appellants filedthe writ petition only on 12-4-1994. In spite of the Section6 declaration having been made on 18-3-1992, the appellantsallowed the acquisition proceedings to go on until the awardwas passed. This fact clearly indicates that the appellantsdid not have a genuine grievance against Section 5-A inquiryheld by the Collector. Therefore, we are not inclined tointerfere with the judgment on the grounds now advanced bythe appellants."14. Further a Division bench of this Court in the case ofRamalingam v. State of T.N. 2005 (3) CTC 1, wherein the writpetition has been filed on 28.11.1996 against the acquisitionproceedings after passing of the award on 07.11.1996 andquestioning the same, as in the present case, on the ground oflimitation under section 11A of the Act, has held as follows :"It has been repeatedly held by the Supreme Court thatno writ petition should be entertained after the award underthe Land Acquisition Act has been passed – vide Tej Kaur andothers v. State of Punjab and others 2003 (4) SCC 485;Municipal Council, Ahmed Nagar v. Shah Hyder Beig, AIR 2000SC 671, Executive Engineer, Jal Nigam Central StoresDivision, Uttar Pradesh v. Suresh Nand Jayal, 1997 (9) SCC224; State of Tamil Nadu v. L.Krishnan and others 1996 (1)SCC 250. 15. Yet another judgment is in the case of S.Harshavardhan v.State of Tamilnadu, 2005 (3) CTC 691, in which the Division bench,has held as follows :"It has been repeatedly held by the Supreme Courtvide Tej Kaur and others v. State of Punjab and others2003 (4) SCC 485 that writ petition challenging the landacquisition proceedings should not be entertained afterthe award has been passed. In that case, the award waspassed on 15.03.1994 whereas the writ petition was filedon 12.04.1994, i.e., after the award was given. Hence,the writ petition was dismissed as belated. Similarly inMunicipal Council, Ahmed Nagar v. Shah Hyder Beig, AIR 2000 SC 671, the Supreme Court observed vide paragraph17 : https://hcservices.ecourts.gov.in/hcservices/ "In any event, after the award is passed, no writpetition can be filed challenging the acquisition noticeor against any proceedings thereunder."The Supreme Court also observed in that decision that thishas been the consistent view of the Court, e.g., inC.Padma and other v. Deputy Secretary to the Government ofTamil Nadu and others, 1997 (2) SCC 627, MunicipalCorporation of Greater Bombay v. The IndustrialDevelopment Investment Co. Ltd., AIR 1997 SC 482, etc.Hence, without going into the merits of the case, we areof the opinion that the writ petition was rightlydismissed on the ground of laches."16. For the foregoing discussion, and in the light of thejudgment of the Supreme Court referred to above, we are of theconsidered view that the order impugned in the writ appeal cannotbe sustained and the same is set aside. The writ appeal is allowedand the writ petition is dismissed. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.MfTo1. The Secretary to Government, State of Tamilnadu, Housing and Urban Development Department, Fort St. George, Chennai 9.2. The Special Tahsildar, Land Acquisition, Neighbourhood Scheme, Ayyan Thirumaligam Road, Salem 636 008.3. The Chairman and Managing Director, Tamilnadu Housing Board, Anna Salai, Madras 35.+ 2 CC To M/s.Rathinasabapathy Advocate SR NO.43388+ 1 CC To Mr.K.Chelladurai, Advocate SR NO.44101+ 1 CC to the Government Pleader SR NO.43550 WA No.4093 of 2004SSV {CO}TP/20.8.08