IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 04.03.2011 Coram:- THE HON'BLE MR. JUSTICE T.RAJA Writ Petition No.2347, 4770, 4993, 5100, 8855 & 27434 of 2010 and M.P. Nos.1 of 2010, etc. W.P. No.2347 of 2010 Sundaramoni Venkatesan @ Rani Venkatesan ... Petitioner in W.P.No.2347/2010 L.N.Venkatesan ... Petitioner in W.P.No.4770/2010 Beela Rajesh, I.A.S., ... Petitioner in W.P.No.4993/2010 Beena Manivannan ... Petitioner in W.P.No.5100/2010 Karthik N.Venkatesan Rep. By his father & Power Agent L.N.Venkatesan ... Petitioner in W.P.No.8855/2010 1.Sundarmoni Venkatesan @ Rani Venkatesan 2.L.N.Venkatesan 3.Karthik Venkatesan Rep by his Power Agent L.N.Venkatesan 4.Beena Manivannan 5.Beela Rajesh ... Petitioner in W.P.No.27434/2010 vs. 1. The State of Tamil Nadu, rep. by the Secretary, Housing & Urban Development Department, Fort St.George, Chennai 600 009. ... Ist Respondent in all Wps. 2. The Chairman, Tamil Nadu Housing Board, Anna Salai, Nandanam, Chennai 600 035. ... 2nd Respondent in W.P.2347, 4770, 27434/2010 https://hcservices.ecourts.gov.in/hcservices/ 2.The Managing Director, TNHB, Anna Salai, Nandanam, Chennai-35. ... 2nd Respondent in WP 4993,5100, 8855/2010 3. The Special Tahsildar (LA), Division-5, Tamil Nadu Housing Board, Nandanam, Chennai 600 035. ...3rd Respondent in all Wps. WP No.2347 of 2010:- Petition under Article 226 of the Constitution of India for the issuance of a writ of declaration, declaring that the entire land acquisition proceedings initiated by the respondents in Notification under Section 4 (1) of the Land Acquisition Act, 1894 in G.O. Ms. No.36 (Housing and Urban Development) Department dated 19.2.1975 and Declaration under Section 6 in G.O.Ms. No.595 (Housing and Urban Development) Department dated 21.3.1978 stands lapsed as the Award No.4/1988 dated 10.2.1988 was passed after the expiry of two years from the date of amendment Act came into force on 24.09.1984 by the third respondent for an extent of 67 cents out of 4 acres 33 cents comprised in Old Survey No.232/1C, New Survey No.232/1C5, Kottivakkam Village, Tambaram Taluk, Kancheepuram District. W.P.No.4770/2010: Praying to issue a writ of declaration declaring the entire proceedings of land Acquisition relating to the petitioner land including the Award No.4/1988 dated 10.2.1998 passed pursuant to the Notification of Section 4(1) of the Land Acquisition Act 1894 19.2.1975 and the declaration under Section 6 of the Land Acquisition Act 1894 dated 21.3.1978 and to the present action of forceful eviction of the petitioner on 06.02.2010 is ultra virus to Article 14, 21 and 300 A of the Constitution of India and inconsistent with the provision and scheme of the Tamilnadu Housing Act and section 11 A and 48 of the Land Acquisition Act. W.P.No.4993/2010, 5100/2010: Praying to issue a Writ of Mandamus,forbearing the respondents from proceeding with the illegal and arbitrary Land Acquisition Proceedings in pursuant of the notification under Section 4(1) of the Land Acquisition Act 1894 in G.O.Ms.No.36 (Housing and Urban Development) Department dated 19.2.1975 and Declaration under Section 6 in G.O.Ms.No.595 (Housing and Urban Development) Department dated 21.3.1978 stands lapsed as the Award No.4/1988 dated 10.2.1988 was passed after the expiry of two years from the date of amendment Act came into force on 24.09.1984 by the Third Respondent for an extent of 90 cents out of 4 acres 33 cents comprised in Old Survey No.232/1C New Survey No.232/1C4 Kotivakkam Village Tambaram Taluk Kancheepuram District. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.8855/2010: Praying to issue a writ of Mandamus, forbearing the respondents from initiating any action pursuant to Land Acquisition Proceedings in pursuant of the notification under Section 4(1) of the Land Acquisition Act 1894 in G.O.Ms.No. 36 (Housing and Urban Development) Department dt 19.2.1975 and Declaration under Section 6 in G.O.ms.No. 595 (Housing and Urban Development) Department dt 21.3.1978 as the Land Acquisition Proceedings stood lapsed as the Award No. 4/1988 dt 10.2.1988 was passed after the expiry of two years from the date of Amendment Act came into force on 24.9.1984 in respect of an extent of 90 cents out of 4 acres 33 cents comprised in Old Survey No. 232/1C New Survey No. 232/1C4 Kotivakkam village Tambaram Taluk Kancheepuram District. W.P.No.27434/2010: Praying to issue a writ of Certiorarified Mandamus, calling for the records in pursuant to the Letter No. 3766/LA2/(1)10-7 dt 25.10.2010 on the file of the 1st respondent and quash the same and issue consequential direction directing the respondents to withdraw the Acquisition proceedings an extent of 4 acres 33 cents comprised in Old Survey No. 232/1C New Survey No. 232/1C5 Kottivakkam village Tambaram Taluk Kancheepuram District initiated by the Respondents in Notification under Section 4 (1) of the Land Acquisition Act 1894 in G.O. Ms. No. 36 (Housing and Urban Development) Department dt 19.2.1975 and Declaration under section 6 in G.O.Ms.No.595 (Housing and Urban Development) Department dt 21.3.1978 as being lapsed. For petitioner in all the Writ Petitions : Mr.Altaf Ahmed, Senior Counsel for M/s.K.M.Vijayan Associates (in W.P. No.4770/10) for Mr.V.Chandrakanthan (in WP.2347 & 27434/10) for Ms.N.Rajalakshmi (in WP.4993 of 2010) for Mr.R.Karunakaran (in WP.5100 of 2010) for Mr.K.V.Sundarajan(in WP.8855 of 2010) For the Housing Board/R2 in all WPs : Mr.P.Wilson, AAG assisted by Mr.A.Vijayakumar For Respondents 1 and 3 : Mr.S.Sivashanmugam, GA. in all WPs COMMON JUDGMENT Inasmuch as all the above six writ petitions are interconnected and the issues raised therein being one and the same, they are disposed of by this Common Judgment. https://hcservices.ecourts.gov.in/hcservices/ 2. The factual backdrop in which the present writ petitions came to be filed, of course fathomed to be a renewed legal battle rather on settled disputes, is concisely outlined below for better appreciation. a) One Mr.L.N.Venkatesan is the petitioner in W.P. No.4770 of 2010 and the petitioners in other writ petitions seem to be his family members. The said L.N. Venkatesan owned a land measuring about 10.33 acres in S. No.232/1C in Kottivakkam Village, Saidapet Taluk, Chengalpattu District. At the request of the Tamil Nadu Housing Board for implementation of South Madras Neighbourhood Scheme, the Government passed an order on 18.02.1972 for acquisition of 275 acres of land at Kottivakkam and Thiruvanmiyur villages, whereupon, the District Revenue Officer, Kancheepuram, submitted a Draft Notification under Section 4(1) of the Land Acquisition Act (hereinafter referred to as the 'Act') in respect of 97.01 acres comprised in S. Nos.224/2, 232/1B1 etc. of Kottivakkam Village. The land of the petitioner in S. No.232/1C was forming part of the total acquisition of 97.01 acres. b) Challenging the Notification under Section 4(1) and Declaration under Section-6 of the Act whereby the petitioner- L.N.Venkatesan's land ad-measuring 10.33 acres came to be included within the zone of acquisition, a writ petition came to be filed before this Court in W.P. No.10351 of 1982. In the said Writ Petition, the petitioner restricted the relief in respect of 6 acres comprised in the aforesaid survey number and ultimately, by Judgment dated 08.01.1988, a Division Bench of this Court allowed the prayer for the said extent of 6 acres. Since the said Judgment was not challenged by way of Appeal, the decision became final in respect of the said 6 acres. However, as against an identical order passed by the High Court in the case of the petitioner's brother, the Apex Court set aside the Judgment of the High Court and upheld the Notification and the said Judgment is reported in 1996 (1) SCC 250 (State of T.N. and others vs. L.Krishnan and others). c) Even during the pendency of W.P. No.10351 of 1982, the petitioner filed another Writ Petition in W.P. No.7645 of 1986 in respect of the remaining 4.33 acres of land and stay of the proceedings was ordered on 06.08.1986 and, by order dated 14.07.1987, the stay was made absolute for taking possession alone with an observation that other proceedings may go on. Ultimately, W.P. No.7645 of 1986 came to be dismissed by order, dated 08.08.1997, of a Division Bench of this Court on the ground of delay and laches and, by referring to L.Krishnan (petitioner's brother case decided by the Supreme Court) Case, it was specifically observed that the petitioner, by confining the challenge in the previous litigation in respect of 6 acres, himself made it clear that he was not challenging the acquisition of the rest of the land measuring 4.33 acres. https://hcservices.ecourts.gov.in/hcservices/ d) After modification of the stay order, in order to complete the award proceedings, on 18.08.1987, further enquiry notice was issued to the petitioner fixing the enquiry on 24.08.1987, whereupon, the petitioner requested for grant of 10 days time and another notice, was issued to him on 04.09.1987 fixing the enquiry on 14.09.1987 and for that, it was represented that he had received the letter only on 14.09.1987 and again, he was requested to appear for the enquiry on 30.10.1987 for which he expressed his inability to attend the enquiry as he was not in station on 30.10.1987 & 31.10.1987 and thereafter, he failed to appear for the enquiry on 09.11.1987 and ultimately, the award came to be passed on 10.02.1988. As against the said Award, a writ petition in W.P. No.3540 of 1988 was filed by the petitioner-L.N.Venkatesan raising a ground that the Award having been passed beyond the prescribed period of two years, it contravenes the provision under Section 11-A and therefore, the entire proceedings initiated under the Act should be held to have lapsed. By Order, dated 19.07.1996, the First Bench of this Court, by meeting the point of delay in passing of the Award, observed that the interim order obtained at the first instance in W.P. No.10351 of 1982 and in the second instance in W.P. No.7645 of 1986 disabled the Land Acquisition Officer (LAO) from taking possession of the land and hence, as on the date of judgment, there has been an interim order passed in one of those writ petitions operating against the LAO and in such peculiar circumstances involved, the petitioner cannot take the ground of delay and so observing, ultimately, dismissed the writ petition. e) As against the dismissal of the aforesaid Writ Petition, the matter was taken to the Supreme Court by way of SLP Civil Nos.5613 and 5614 of 1997 and, by Judgment dated 04.04.1997, the Apex Court confirmed the order of the High Court and dismissed the SLPs concluding that both the Notification under Section 4(1) as well as the Declaration under Section-6 do not get lapsed as there was no contravention of the provision under Section 11-A of the Act. f) Thereafter, challenging the Resolution, dated 27.01.2001, of the respondent, the petitioner filed W.P. No.1737 of 2001, and this Court dismissed the said writ petition, by order dated 11.10.2002, and the writ appeal preferred as W.A. No.3469/02 came to be disposed of by the First Bench, by Judgment dated 18.11.2002, with an observation that once it was held that this court was not having jurisdiction to dwell on a matter because of pendency of the lis before the Apex Court, it may not be proper for the High Court to enter upon the merits of the matter. g) When the decision of the High Court, dated 08.08.1997, rendered in W.P. No.7645 of 1988, whereby the petitioner's plea for dropping the acquisition proceedings in respect of 4.33 acres was dismissed, and the aforesaid Judgment dt.18.11.2002 passed in W.A. No.3469 of 2002, were challenged before the Apex Court by way of https://hcservices.ecourts.gov.in/hcservices/ Civil Appeal No.1897 of 1998, by Judgment dated 31.03.2004, the Apex Court declined to interfere with the decision of the Division Bench, however taking a sympathetical view on the aspect that the petitioner had no other place to reside, a bungalow shown to have been under construction in an area which is 80' x 122' was permitted to be retained by the petitioner and the entire remaining area was allowed to be taken over by the Housing Board with a clarification even to take possession of those portions which had been sold off by the petitioner. The subsequent Review Petition filed by the petitioner in C. Nos.1240 and 1241 of 2004 before the Apex Court was dismissed on 09.08.2005. The ultimate petitions, dated 16.02.2006, 27.08.2007 and 28.01.2006, made to the Government by the petitioner came to be rejected by letter dated 21.05.2009 and 25.10.2010 by holding that the land in question is essentially required by the TNHB for implementing public schemes. h) Thus, in an incessant legal battle, apart from a writ appeal, the petitioner relentlessly filed 4 writ petitions, of which, except W.P. No.10351 of 1982, all other writ petitions were dismissed by detailed and reasoned orders and the matters taken up to the Supreme Court also met the same fate. 3. In the present round of litigation, in respect of 4.33 acres of land in question, Mr.L.N.Venkatesan has filed W.P. No.4770 of 2010 and other petitioners, who are the family members and in whose favour the land in question is said to have been settled, challenge the acquisition proceedings in respect of the respective portions of land retained by them subsequent to partition/settlement on the ground of delay in passing the Award. 4. Mr.Altaf Ahmed, learned Senior Counsel appearing for the petitioners, with great force and eloquence, argued the matter by making the following three-fold submissions:- (a) The High Court, by its order dated 06.08.1986 passed in W.M.P. No.1099 of 1986 in W.P. No.7645 of 1986, granted interim stay and later, by subsequent order dated 14.07.1987, the stay was made absolute while observing that other proceedings may go on. However, the authorities, who ought to have passed the Award on or before 02.09.1987 in compliance with Section 11-A of the Act, passed it only on 10.02.1988 with a delay of about 5 months, thereby, the entire land acquisition proceedings in respect of 4.33 acres of land in S. No.232/1C are rendered invalid in the eye of law. (b) Section-6 of the Act being analogous to Section-11, for, both the provisions are mandatory in nature, non- compliance of Section-11-A will automatically undo the effect of the acquisition proceedings. https://hcservices.ecourts.gov.in/hcservices/ (c) Having suffered an order of dismissal, dated 19.07.1996, in W.P. No.3450 of 1988, the petitioner approached the Hon'ble Supreme Court and inasmuch as the said SLP came to be dismissed without considering the case of the petitioner as regards the implication of Section-11A to the given circumstances, the petitioner can very well agitate the said ground by way of present writ petitions. It is reiterated that, by modification order dated 14.07.1987, when the Court had made it clear that the stay was made absolute in respect of dispossession alone clearly observing that other proceedings may go on, there was no stay in other aspects and thus, there was no embargo for the authority to pass the award within the prescribed period. According to the learned Senior Counsel, in view of the legal aspects as pointed out above, despite the fact that certain issues seem to have been settled already, this Court may, by examining the issues now raised based on the mandatory 'time-bound obligation' saddled by way of Section-11-A and the abrupt failure on the part of the authority in adhering to the same, hold that the entire proceedings are liable to be set aside and so holding, allow the writ petition. 5. In an endeavour to confute the submissions made by the learned Senior Counsel for the petitioner, Mr.P.Wilson, learned Additional Advocate General appearing for the Board as well as Mr.S.Shivashamugam, learned Government Advocate appearing for other official respondents, forcibly contended that after a couple of litigations launched at the instance of L.N.Venkatesan wherein definite findings were rendered by clearly adverting to his restrictive stand in subjecting himself to a condition that he would not any more insist his claim for the present 4.33 acres of land and, acting on such stand taken by him, already 6 acres of land was allowed to be retained by him and that is why, no appeal was preferred against the order passed in the first writ petition in W.P. No.10351 of 1982. Further, the very same issue relating to the implication of Section 11-A was already dealt with by a Division Bench of this Court while deciding W.P. No.3450 of 1988 (Order dated 19.07.1996) filed by the petitioner and the conclusion reached therein came to be affirmed by the Apex Court by Judgment dated 04.04.1997. That being so, the present proceedings are clearly vitiated by clear operation of the principles of res judicata and even otherwise, it would amount to total abuse of process of Court. According to them, in the present round of litigations, there being no fresh issue for consideration and whatever arguments that have been raised now having been answered by this Court as well as by the Hon'ble Apex Court, it may not be appropriate for this Court to once again delve into the settled legal issue. 6. Even at the outset, it may be gainfully expressed that, despite the renewed and constant efforts of the petitioners to see https://hcservices.ecourts.gov.in/hcservices/ that the acquisition proceedings are dropped by a judicial order and the filial endeavour of the learned counsels to make out a case in favour of the petitioner, unfortunately, this Court is not in a position to appreciate the matter in the perspective of the petitioners as it would run contra to the decisions rendered not only by this Court as well as the Apex Court exactly on the same issue relating to the implication of Section-11A of the Act to the instant case under given circumstances. 7. It is the core contention of the learned Senior Counsel that though an order of interim stay (of all proceedings) was granted on 06.08.1996 in WMP No.1099 of 1986 in W.P. No.7645 of 1986, by virtue of the reason that such order of interim stay came to be modified by a consequent order dated 14.07.1987, making the stay absolute in respect of taking possession alone with a specific observation that other proceedings may go on, one must take note that, while reckoning the time-stipulation of two years to pass an Award as mandated under Section-11A of the Act, the period during which the interim stay was in operation alone shall be excluded and if done so, it would be glaringly apparent that the present Award came to be passed beyond the stipulated period, as a result, the rigour of the proceedings in respect of 4.33 acres in the aforementioned Survey Number would automatically wither away, and such aspect having not been elaborately gone into in the previous litigations, as a fresh issue, the same may now be decided by this Court. 8. The petitioner, in the very first litigation viz., W.P. No.10351 of 1982, was challenging the land acquisition proceedings in respect of 10.33 acres of land owned by him, however, he restricted the claim for 6 acres and left the remaining land of 4.33 acres open to the land acquisition proceedings. In the second round of litigation viz., W.P. No.7645 of 1986 filed for dropping the proceedings pertaining to remaining 4.33 acres of land, the plea was dismissed by order dated 08.08.1987. In the third round, in W.P. No.3540 of 1988, the petitioner precisely raised the very same issue now argued to be a fresh one, and sought to declare the Declaration under Section-6 of the Act as invalid on the ground that the Award which ought to have been passed within two years from 24.09.1984 came to be passed much belatedly on 10.02.1998 and that even if the period during which the interim stay was in operation was to be excluded, still there was a delay indicating contravention of Section-11-A of the Act. The First Bench of this Court in its Judgment dated 19.07.1996, by pointing out thus, " It is not in dispute, in this case, that the petitioner filed WP No.10351/1982, seeking quashing of the acquisition proceedings in question, in respect of the remaining area of 6 acres comprised in S.No.232/1C in Kottivakkam Village, Saidapet Taluk and obtained an https://hcservices.ecourts.gov.in/hcservices/ interim order, which disabled the Land Acquisition Officer even though it related to a portion of the survey number in question to proceed in the matter, much less to pass an Award. ..... Even during the pending of W.P. No.10351/1982, petitioner had filed another writ petition, in W.P. No.7645/1986 and obtained an interim order. W.P. No.7645/1986 relates to the remaining portion of 4.33 acres and that writ petition is heard along with this writ petition. However, we pass a separate order in that writ petition. The interim order obtained WP No.7645/1986 disabling the Land Acquisition Officer to obtain possession of the land in question, is still in operation. Therefore, from the year 1982 till to-day, there has been an interim order passed in one of the Writ Petitions referred to above, operating against the Land Acquisition Officer, disabling him to take possession of the land. , (emphasis supplied) and referring to a decision of the Apex Court reported in Yusufbhai Noormohmed Nendoliya vs State Of Gujarat And Anr (1991 AIR 2153), wherein, it has been held, " The said Explanation is in the widest possible terms and, in our opinion, there is no warrant for limiting the action or proceeding referred to in the Explanation to actions or proceedings preceding the making of the award under section 11 of the said Act. In the first place, as held by the learned Single Judge himself where the case is covered by Section 17, the possession can be taken before an award is made and we see no reason why the aforesaid expression in the Explanation should be given a different meaning depending upon whether the case is covered by Section 17 or otherwise. On the other hand, it appears to us that Section 11-A is intended to limit the benefit conferred on a land holder whose land is acquired after the declaration under Section 6 is made to in cases covered by the Explanation. The benefit is that the award must be made within a period of two years of the declaration, failing which the acquisition proceedings would lapse and the land would revert to the land- holder. In order to get the benefit of the said provision what is required, is that the land-holder who seeks the benefit must not have obtained any order from a court restraining any action or proceeding in pursuance of the declaration under Section 6 of the said Act so that the Explanation covers only the cases of those land-holders who do not obtain any order from a court which would delay or prevent the making of the https://hcservices.ecourts.gov.in/hcservices/ award or taking possession of the land acquired. In our opinion, the Gujarat High Court was right in taking a similar view in the impugned judgment.", did not find any merit in the argument advanced and rejected the writ petition. 9. When the said order was challenged before the Apex Court by way of SLP (C) Nos.5613-14 of 1997 (reported in 1997 (5) SCC 309 cited supra), in its judgment, dated 04.04.1997, noting the contention of the petitioner thus, " The learned counsel for the petitioner contends that the interim stay granted was 'not to dispossess' the petitioner and there is no impediment for the authorities to proceed further in passing the award. ", straight away, the Apex Court answered - 'we find no force in the contention'. Reiterating the principle laid down in Yusufbhai's case to the effect that owner of a land or a person, who is interested in the land, if desires to take advantage of Section-11A of the Act, he must not have obtained an interim order against the LAO of whatsoever nature, the Apex Court pointed out that "the interim order obtained in W.P. No.7645 of 1986 disabling the LAO to obtain possession of the land in question, is still in operation", and concluded that both the Notification under Section 4(1) and the declaration under Section-6 of the Act do not get lapsed and thereby, given a quietus to the issue which is now being re-canvassed. That being so, this Court is not able to appreciate the argument advanced by the learned Senior Counsel that such issue was never dealt with by the Apex Court in the decision reported in 1997 (5)SCC 309 (L.N.Venkatesan