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2017 Supreme(Mad) 2236
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.M. SUNDRESH, J.
B.Venkatesalu – Appellant
Vs.
The Secretary to Government of Tamil Nadu – Respondent
Review Application (W).No.27 of 2016 & WMP No.9121 of 2016 in W.P.Nos.7103 of 2014
Decided on : 08-08-2017
Advocate Appeared:
For the Petitioner: Mr.S.Sathiaseelan
For the Respondents:Mr.V.Ayyadurai, Addl. Advocate General, Asst. by Mr. Rameshvenkatachapalathy, Mr.Jayesh B. Dlia for M/s Aiyar & Dolia, Mr.M.Elumalai, Government Advocate
Headnote:
Land Acquisition Act, 1894 – Right to Fair compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Section 24(2) - Acquisition of Land – Award of compensation – Possession taken – Lapse of proceedings - subject lands are under the occupation and enjoyment of the fourth respondent. Award has been passed on 26.09.1984. Hence, the petitioners are not entitled to receive remedy under the new Land Acquisition Act. Besides, the land acquisition proceedings had been completed during 1984. Therefore, after a lapse of around thirty years, the writ petition is now maintainable, since the original cause of action arose during 1980 – Held, once compensation is fixed, it is only with reference to the quantum alone, hence, the consent has to be referred to with respect to the proposed action by the person interested seeking enhanced compensation apart from other contingencies provided under Section 31(2) of the Act. If one reads sub section (2) of the Section 31 of the Act as a whole, the position is very clear. The Court can go into the question of title, lack of competency on the part of the person claiming compensation and apportionment apart from enhancement. Thus, while it can be said that a mere non receipt of the compensation per se cannot be termed as a refusal to give consent, which is relatable to a right to seek compensation under Section 18 of the Act. Such a consent or its refusal, as discussed already, cannot be presumed to a challenge to the acquisition which stage has crossed already - notice issued under Section 12(2) of the Act I of 1894 through Form 9 by its own nomenclature is an intimation. The original owner was accordingly informed about the award passed, reminding him of his rights available under Section 18 of the Act, which provides for a reference. Incidentally, he was also informed that if he does not turn up then the sum decided as compensation shall be kept in revenue deposit without interest. Therefore, it is an action under Section 31(1) of the Act and not on Section 31(2) of the Act – Review petition dismissed
The lands, which stood originally in the name of the petitioners' father, were acquired under the Land Acquisition Act, 1894, (Central Act 1 of 1894) by invoking the urgency clause. W.P.Nos.12272 and 12273 of 1984 were filed against dispossession without a specific challenge to the land acquisition proceedings at the instance of the petitioners' father and the same was dismissed. An award was passed on 26.09.1984 and possession was also taken and handed over to the third respondent. Thereafter, the fourth respondent was allotted the lands. Seeking to invoke Section 48-B of the Land Acquisition Act, 1894, W.P.No.2518 of 2013 was filed, which was also dismissed, confirming the order rejecting the request made. Not satisfied with the same, placing reliance upon Section 24(2) of the Right to Fair compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, (Central Act 30 of 2013) interalia contending that possession has not been divested with and the compensation amount as mandated under Section 31(2) of the Act 1 of 1894, has not been deposited in the Court, the present writ petition in W.P.No.7103 of 2014 has been filed. The said writ petition was dismissed on 18.01.2016 with the following finding.
“32. On considering the facts and circumstances of the case, arguments advanced by the learned counsel on either side and on perusing the typed set of papers, this Court is of the view that the subject lands had been allotted to the fourth respondent on 02.07.1992. The fourth respondent had stated his manufacturing unit and the same had been inspected by the Chief Inspector of Factories, who also sent a communication, dated 17.02.1995, to the fourth respondent stating that Plot No.77 is owned by the fourth respondent. Therefore, it clearly proves that the subject lands are under the occupation and enjoyment of the fourth respondent. Award has been passed on 26.09.1984. Hence, the petitioners are not entitled to receive remedy under the new Land Acquisition Act. Besides, the land acquisition proceedings had been completed during 1984. Therefore, after a lapse of around thirty years, the writ petition is now maintainable, since the original cause of action arose during 1980. In such circumstances, the writ petition does not generate sufficient force to allow it and hence it is liable to be dismissed.
33. In the result, the writ petition fails and it is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
Seeking to review the said order on the premise that the import of the Right to Fair compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, has not been taken note of, the present review application has been filed.
2. The learned counsel appearing for the petitioners would submit that there is an error apparent on the face of record. The grounds raised qua the applicability of the Act 30 of 2013 have not been considered. The very same learned Judge, on three other occasions, applied the provision of Section 24(2) of Act 30 of 2013 and granted the relief though the acquisition was much earlier. Thus, dismissing the acquisition proceedings on the ground of delay and laches is bad in law. The land acquisition manual has no application in not having statutory prescription and confirming the power contrary to Section 55 of the Act 1 of 1894. The case of the petitioners would come under Section 31(2) of the Land Acquisition Act (Act 1 of 1894) read with 24(2) of Act 30 of 2013. Admittedly, no deposit has been made as mandated under Section 32(2) of the Act 1 of 1894. Non receipt of the compensation amount would amount to refusal to give the consent. Section 31(1) of the Act only deals with payment and not otherwise. The dismissal of the writ petitions filed earlier would not bar the relief sought for. A mere request made seeking the release of the land under Section 48(B) of the Act 1 of 1894 will disentitle the petitioners from getting the r
