IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:22.09.2011 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P.No.33520 of 2003 1. A.P.Vannia Rajan & Co., Rep. By its partner, 33, M.C.C.Street, Virudhunagar. 2. A.R.Jagadeesan 3. A.R.Sathyanarayanan 4. A.N.Natarajan ... Petitioners Vs. 1.The Secretary to Government of Tamil Nadu, Department of Housing and Urban, Development, Fort St. George, Madras 600 009. 2.The Tamil Nadu Housing Board, Rep. By its Executive Engineer and Administrative Officer, Ellis Nagar, Madurai. 3.The District Collector, District Collector Office, Virudhunagar. 4.The Special Tahsildar (L.A.), Neighbourhood Housing Scheme, Sivakasi, Kamaraj District. ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of certiorarified mandamus as stated therein. For Petitioner :Mr.K.Ravi for M/s.Rugan & Arya For Respondents :Mr.S.Gomathinayagam, AAG, for R1, R3 & R4 Assisted by Mr.S.V.Duraisolaimalai, AGP Mr.S.Vanchinathan, for R2 ORDER The petitioners herein seek for issuance of writ of certiorarified mandamus to call for the records of the first respondent and quash the acquisition proceedings that culminated in the declaration made under Section 6 of the Tamil Nadu Land Acquisition Act, vide G.O.Ms.No.473, published in page1, part II, section 2 of the Tamil Nadu Government Gazette, dated 31.05.1990, in so far as it concerns 5.04 acres of land only comprised in the petitioners' S.No.359/1B (1.26 acres), S.No.359/2 (2.34 acres) and 362A/1 (1.44 acres) in Chatrareddipatti Village, Virudhunagar District, granting liberty to the petitioners to seek and receive compensation from the respondents for the 1.25 acres comprised in S.No.359/1A at the highest rate as awarded finally in respect of any land acquired for the scheme in question or alternatively direct the respondents to allot to the petitioners the land in S.Nos.373 and 374, in Chatrareddipatti Village, Virudhunagar, opposite to the Circuit House, Virudhunagar in lieu of the petitioners' land in S.Nos.359/1 & 2 and 362A/1, in Chatrareddipatti Village, Virudhunagar District. 2. When the petitioners owned lands in S.Nos.359/1 & 2 and 362/A1 in Chatrareddipatti Village, Virudhunagar, admeasuring 6.29 acres, the respondents sought to acquire the said lands by issuing 4(1) notification dated 17.05.1989, for the Housing Board, followed by declaration under Section 6 of the Act. Challenging the said acquisition proceedings, the petitioners had filed writ petitions in W.P.Nos.8913 to 8916 of 1990. During the pendency of the writ petitions, the Tamil Nadu Housing Board came forward to allot alternative sites to the petitioners in S.F.Nos.373 and 374 on the National Highway, opposite to the Circuit House, Virudhunagar. In view of the same, the petitioners accepted the said proposal and requested the second respondent Board to allot such alternative sites. On that basis, this Court, by order dated 03.07.2001 in the above said writ petitions, directed the Tamil Nadu Housing Board to process the allotment of the alternative sites to the petitioners as early as possible. After the said order passed by this Court, the petitioners, by a letter dated 25.07.2001, requested the second respondent herein to pass final orders allotting the alternative sites, as promised before this Court on 03.07.2001. But, there was no reply to the said letter. Therefore, they repeated the same request by another letter dated 12.02.2002, but, again, there was no reply. Therefore, the petitioners issued a legal notice dated 29.05.2003 addressed to the Secretary to Government, Housing and Urban Development Department, Government of Tamil Nadu and also to the Chairman of the Tamil Nadu Housing Board, requesting them to instruct the officers concerned at Madurai to comply with the directions of this Court and allot alternative sites to the petitioners. As there was no reply again, the petitioners have filed the present writ petitions with the aforesaid prayer. 3. Learned counsel appearing for the petitioners submitted that when the respondents have issued 4(1) notification seeking to acquire the lands admeasuring 6.29 acres in S.Nos.359/1 & 2 and 362/A1 of Chatrareddipatti Village, Virudhunagar, admittedly, there was a delay of one year on the part of the respondents in issuing publication under Section 6 declaration from the date of issuance of 4(1) notification, which shows that the respondents were not serious with regard to the acquisition proceedings. Therefore, when the petitioner came to this Court by filing W.P.Nos.8913 to 8916 of 1990, challenging the publication of Section 6 declaration, the counsel for the Housing Board had offered alternative lands to the petitioners. Accepting the said submission, this Court, by order dated 03.07.2001, disposed of the above said batch of writ petitions. After the order was passed, the petitioners were under the bonafide impression that they would get alternative lands in lieu of 6.29 acres covered in S.Nos.359/1 & 2 and 362/A1. In spite of the several steps taken by the petitioners for allotment of the alternative lands, the respondents have not taken any steps to allot such alternative lands, as they promised before this Court in the above said writ petitions. 4. In his further submission, he has submitted that, as per Section 11-A of the Land Acquisition Act, 1894, the Collector shall make an award under Section 11 within a period of two years from the date of publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. Further, it was pleaded that even though they have awarded compensation in respect of 1.25 acres in S.No.359/1A, the petitioners are entitled to have the maximum compensation, as was already paid to the similarly placed land losers , for the reason that though the respondents have passed the award in respect of 1.25 acres in S.No.359/1A on 15.05.1992, the said award is in complete disobedience to the order of stay passed by this Court on 05.07.1990 in the above said writ petitions. In support of his submissions, he has also relied upon a judgment of this Court in U.Prashanthi Vs. State of Tamil Nadu (2000 (1) CTC 714), to submit that if no award is passed within 2 years from the date of application of declaration, the license proceedings have to be set aside. 5. Per contra, learned Additional Advocate General appearing for the respondents 1, 3 and 4 submitted that the present writ petition is not legally maintainable for the reason that, at no point of time, the Government has given any promise, as he argued, that they would offer or allot any alternative lands in lieu of the acquired lands, which has been covered in the 4(1) notification. That apart, when the matter was seized by this Court, the officers of the respondents department, in an effort to give utmost respect of the Court's proceedings, have rightly not taken any steps for passing the award. Though they have passed an award in respect of 1.25 acres covered in S.No.359/1A, they have not thought fit to pass award in respect of the rest of the lands, therefore, the delay in not passing the Award cannot be put against them. 6. Adding his submission, it was further submitted that the Tamil Nadu Housing Board is a statutory body formed for the initiation of the housing scheme for houseless poor by acquiring land under Land Acquisition Act. As there is no provision contemplated under the Land Acquisition Act for allotment of alternative land for the acquired land, the request made by the petitioners for alternative lands cannot be legally considered and, in respect of an offer made by the earlier counsel on 03.07.2001, it was replied that only on a misrepresentation, the earlier counsel has made a wrong offer before this Court, therefore, the respondents are not bound by any such offer of alternative lands. In any event, an offer for alternative land given in the earlier proceedings will not amount to any consent given by the Tamil Nadu Housing Board. 7. In support of his submissions, he has also relied upon a judgment of the Apex Court in M.Ramalinga Thevar Vs. State of Tamil Nadu and others (2000 (II) CTC 597) for a preposition that even if an award is passed after a lapse of 2 years, when there is any stay regarding any of the actions to be taken pursuant to the declaration, then the consequence of lapse would not happen and in view of the stay order, it has to be held within the period of limitation. Accordingly, he submitted that in view of an interim order of stay granted by this Court on two occasions, namely, on 05.07.1990 in W.P.Nos.8913 to 8916 of 1990, followed by another order of stay on 10.06.1991 in W.P.No.7253 of 1991, and in view of the pendency of this writ petition, the respondents were not in a position to pass the award, therefore, the same cannot be put against them. 8. Heard the learned counsel appearing on either side and perused the materials available on record. 9. Prima facie, the order passed by this Court in W.P.Nos.8913 to 8916 of 1990, dated 03.07.2001 shows that the Housing Board have agreed to allot the alternative sites to the petitioners. In this regard, it is relevant to extract paragraph 3 thereof; "3. There are correspondence to that effect also. The fact, he also took me through a letter dated 29.08.1996 written by the Executive Engineer and Administrative Officer, Madurai Sub Division, Ellis Nagar. In the said letter, the said Executive Engineer had sought for the concurrence of the petitioners to accept the alternate sites in S.F.Nos.373 and 374 situated in the Highway opposite to the Circuit House. The petitioners also by letter dated 02.09.1996 had expressed their consent to accept the alternate sites of the same extent. The Executive Engineer by subsequent letter dated 19.03.1997 also sought for the particulars with regard to the extent of ownership of the petitioners. The petitioners furnished the particulars by their letter in March 2000." In view of the correspondence between the petitioner and the Housing Board as stated above, this Court, accepting the stand taken by the respondents for allotting the alternative sites to the petitioners, disposed of the said writ petitions giving a direction to the Housing Board to allot the alternative sites to the petitioners as early as possible. Further, in view of an identical issue raised in another writ petition, this Court has passed another order on the same day in W.P.No.7253 of 1991. 10. From the above said orders passed by this Court, it is clear that the respondents have really offered a promise to the petitioner to accept the alternative lands in lieu of the petitioners' lands covered in S.Nos.359/1 & 2 and 362/A1. Thereafter, when the petitioners continuously reiterated the same grievance as that of the earlier one, the respondents have not taken any steps for allotting the alternative sites to the petitioners, and as a result, the petitioners have once again filed the present writ petition. No doubt, in respect of 1.25 acres covered in S.No.359/1A, the award has been passed on 15.05.1992. Even though an award has been passed, in my considered opinion, it should not have been passed, as this Court had already granted an order of interim stay of all further proceedings in W.P.Nos.8913 to 8916 of 1990 on 05.07.1990, followed by another order of interim stay in W.P.No.7253 of 1991, dated 10.06.1991. Therefore, the petitioners are right in asking for better compensation, as the respondents have already paid higher compensation as determined by the Higher Courts to the similarly placed land losers in the year 1992. Though this Court has granted an order of interim stay, subsequently, all the 5 writ petitions were disposed of on 03.07.2001 with a direction to set in motion the process of allotment of alternative sites, and thereafter, there was no order of stay, therefore, the respondents could have passed an award in respect of the other lands admeasuring 5.04 acres. Admittedly, till now, the respondents have not passed any award even after writ petitions were disposed of on 03.07.2001. Resultantly, the period of two years given under Section 11-A is lapsed and therefore, the legal consequence will render all the acquisition proceedings invalid. 11. In this regard, it is relevant to refer to a Section 11-A of the Land Acquisition Act, which is extracted as under:- "11-A. Period within which an award shall be made. -- The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse: Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement." A mere reading of Section 11-A clearly shows that the Collector will have to work out for an award under Section 11 within 2 years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. Therefore, the petitioners are entitled to have the benefit of Section 11-A, for, admittedly, even after the disposal of the writ petitions, they have not even come forward to pass an award. On that basis, the entire acquisition proceedings are liable to be quashed and accordingly, they are quashed, as the entire acquisition proceedings have already been lapsed. This Court, by quashing the proceedings for acquisition of the land in respect of 5.04 acres covered in S.Nos.359/1B, 359/2 and 362A/1, gives a liberty to the petitioners to approach the respondents by moving appropriate application for getting suitable compensation in respect of 1.25 acres of land and if the petitioners make any such application therefor, it is for the respondents to consider their application in accordance with law. In result, for the aforesaid reasons, the present writ petition is allowed. No Costs. Index : Yes/No 21.09.2011 Internet:Yes/No rkm To 1.The Secretary to Government of Tamil Nadu, Department of Housing and Urban, Development, Fort St. George, Madras 600 009. 2.The Tamil Nadu Housing Board, Rep. By its Executive Engineer and Administrative Officer, Ellis Nagar, Madurai. 3.The District Collector, District Collector Office, Virudhunagar. 4.The Special Tahsildar (L.A.), Neighbourhood Housing Scheme, Sivakasi, Kamaraj District. T.RAJA,J. Rkm W.P.No.33520/2003 22.09.2011