(Prayer:Writ Petition filed under Article 226 of the Constitution of India for a Writ of Declaration, declaring that the Land Acquisition Proceedings initiated under the Land Acquisition Act, 1894, with respect to the lands of an extent of 2.61 acres comprised in S.No.605 situated at Mogappair Village, Saidapet Taluk, Thiruvallur District belonging to the petitioners as lapsed in view of the Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013).)

1. The short facts of the case are as follows:-

The first writ petitioner submits that the second and third petitioners are his brothers and fourth and fifth petitioners are his sisters and he filed this writ petition on behalf of other petitioners and himself. He further submits that his father Late Ganesan was the owner of 2.61 acres of land comprised in Survey No.605 of Mogappair Village, Saidapet Taluk, Thiruvallur District. The said land was subjected to Land Acquisition Proceedings under the Land Acquisition Act, 1894, herein after called the old Actfor the housing scheme sponsored by the second respondent, viz., the Managing Director, Tamil Nadu Housing Board. The notification under Section 4(1) of the Land Acquisition Act, 1894 came to be issued on 23.10.1975, which was followed by a declaration under Section 6 of the Act, dated 09.11.1978. An award came to be passed in award No.3/1984, dated 03.02.1984 under the old Act.

2. The first petitioner additionally added that his father the Late Ganesan challenged the said Land Acquisition Proceedings in W.P.No.5444 of 1988 before this Court. The Division Bench of this Court was pleased to allow the said writ petition and thereby the entire acquisition proceedings in respect of the subject land was quashed. The first respondent herein, viz., the Secretary attached to the Housing and Urban Development Department had filed SLP(C)No.2524 of 1996 before the Honble Supreme Court. When the case was pending before the Honble Supreme Court, his father expired on 12.07.1994 and the petitioners herein were brought on record as the sole legal-heirs of the late Ganesan. By order dated 08.10.1999 in Civil Appeal No.5902 of 1999, the Honble Supreme Court was pleased to allow the appeal. While allowing the said appeal, the Honble Supreme Court observed that if the land is surrounded by the lands released from acquisition, then it remains open to the petitioners to move before the Government and the Housing Board for releasing the land from the acquisition proceedings.

3. The first petitioner further submits that a writ petition was filed in W.P.No.22974 of 2010, before this Court seeking directions to the respondents, to consider their representation for release of their land from acquisition in terms of the order passed by the Honble Supreme Court dated 08.10.1999 in Civil Appeal No.5902 of 1999. By order dated 14.12.2010, this Court was pleased to pass the following orders:-

"16. However, since it is the stand of the respondents that the scheme is under progress and they are seeking approval, which is pending with the CMDA, the Housing Board is directed to take steps to get appropriate orders, from the CMDA, within a maximum period of six months from the date of receipt of a copy of this order. In the event of the CMDA not granting the approval for utilizing that land in question for residential plots with car parking, then the request of the petitioner has to be considered in terms of the Honble Apex Courts order dated 08.10.1999. In the event of the CMDA granting approval, question of re-conveyance does not arise. However, they cannot go on postpone this on one ground or another inventing new public purposes to reject the claim of the petitioners in view of the Apex Courts especially in the case reported in 2010 (2) CTC 336. [LQ/SC/2010/192] Apart from this, when other adjoining lands have been released, the petitioners alone cannot be singled out and different treatment cannot be extended to the petitioners as in my opinion this will amount to clear discrimination in view of the above referred Honble Apex Courts Judgment reported in 2012 (2) CTC 336."

4. The first petitioner additionally added that the respondents had not obtained the approval from the Chennai Metropolitan Development Authorities till date. The respondents are not requiring the land for the purpose for which it was being acquired or for any other public purpose. Hence, the petitioners have filed another writ petition in W.P.No.23610 of 2012, seeking a writ of mandamus, thereby directing the respondents for re-conveyance of land. However, by order dated 16.12.2012, this Court was pleased to permit the petitioners to withdraw the writ petition with liberty to move afresh if so desire.

5. The first petitioner further submits that till date, the respondents did not implement any schemes on this land. The land is in their possession and enjoyment. Though the award No.3 of 1984, came to be passed as early as on 03.02.1984, the respondents did not take possession of the land from them till date. In fact, no notice was issued under Section 12(2) of the Old Act, informing his father the late Ganesan or themselves regarding the passing of the award. They were neither offered nor paid the compensation amount by the respondents in respect of their land. Till date, the compensation offered in the award dated 03.02.1984 has not been deposited before the competent civil Court by the respondent. Thus, the compensation amount is neither paid nor made available for the petitioners to receive the compensation by depositing the same before the competent civil Court. As such this is tantamount to a crucial failure of the issue.

6. The first petitioner further submits that in such circumstances, now the Government of India enacted a new Land Acquisition Act replacing the Old Act, 1894, viz., the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013), hereinafter called the New Act and the same came into effect from 01.01.2014. If the physical possession of the lands is not taken from the landowners in respect of the proceeding initiated under the Old Act after the passing of the award, as per Section 24(2) of the New Act, the entire acquisition proceedings initiated under the Old Act shall be deemed to have been lapsed. Since the physical possession of the land is not taken from the third respondent herein after the passing of the award on 03.02.1984, and as the possession of the land is still with them, the respondents do not have any right to proceed under the Old Act, 1894, which has been repealed Section 24 of the New Act reads as follows:-

"24. Land Acquisition Process under Act No.1 of 1894 shall be deemed to have lapsed in certain cases:-

(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894:

(a) Where no award under Section 11 of the said land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply: or

(b) Where an award under said Section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.

(2) Notwithstanding anything contained in Sub-Section (1), in case of Land Acquisition Proceedings initiated under the Land Acquisition Act, 1894, where an award under the said Section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid in the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provision of this Act.

Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under Section 4 of the Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."

7. The first petitioner additionally added that in view of the fact that the physical possession in respect to the subject land is not taken from them or from their father Late Ganesan and as the compensation amount is not paid till date, they are entitled to seek a declaration since the entire land acquisition proceedings initiated under the Old Act, 1894 is deemed to have lapsed in view of Section 24(2) of the New Act. Under the circumstances, the petitioners approached this Court for declaration that the land acquisition proceedings which had been initiated under the Land Acquisition Act, 1894 has lapsed.

8. The second respondent has filed the counter affidavit and resisted the writ petition. The second respondent submits that the Tamil Nadu Housing Board has proposed to implement the Housing Scheme in the Sub Urban area of Chennai by acquiring the patta lands in Mogappair Village for an extent of 513.82 acres. The 4(1) notification was approved by the Government in G.O.Rt.No.261, Housing & Urban Department, dated 23.10.1975 and the gist of the 4(1) notification was published in the TNGG No.44c, Supplement to Part II Section 2, dated 12.11.1975. The draft declaration under Section 6 of the Land Acquisition Act, 1894 (Central Act 1 of 1894) was approved by the Government in G.O.(Ms)No.1515, Housing and Urban Development Department, dated 09.11.1978. The gist of the Draft Declaration was published in the TNGG on 10.11.1978 and award was passed. Mogappair West Scheme has been implemented during 1987 in the lands acquired in Mogappair Village. The land bearing S.F.No.605 with an extent of 2.61 acres had also been acquired vide Award No.3/1984, dated 03.02.1984. At the time of implementation of Mogappair West Scheme, it was not able to implement Housing Scheme in S.No.605 along with other lands due to non access ability. Besides, Thiru.A.Ganesan, father of the petitioner filed W.P.No.5444 of 1988 before this Court, challenging the acquisition for land in S.No.605 of Mogappair Village. The above writ petition was allowed on 29.04.1991 by quashing the 4(1) notification. Since the writ was allowed by the Honble Division Bench of this Court, the Tamil Nadu Housing Board had filed SLP(C)No.2524/1996 before the Honble Supreme Court of India and the above case was ordered on 08.10.1999 with direction to consider and pass order on the request of the petitioner. Hence, the petitioners request had been carefully considered and rejected by the Government in Letter No.29116/LA 1(1)/05-04, dated 23.01.2007.

9. The second respondent further submits that subsequently, the land surrounding S.No.605 was developed by the private promoters and hence, the land in S.No.605 gets access through S.No.604 to implement the Housing Scheme. The Layout for providing Residential plots in the land in S.Nos.604, 605 of Mogappair Village was sent to the CMDA vide their office letter No.SS/740/2000, dated 11.04.2001 for getting the approval and the same was withdrawn by the Tamil Nadu Housing Board in order to construct flats in the above land for providing shelter to more numbers of public. At this stage Thiru.Govindarajan and 3 others have filed W.P.No.2682/2004 in S.No.604 of Mogappair Village against the Land Acquisition. The Court ordered the respondents, on 12.02.2004, to consider and pass order. As per the above order, the petitioners request was carefully considered and rejected by the Government vide Letter No.9598/L.A. I(I)-2001-10, dated 14.10.2004. Against the above order, the petitioners Tvl.Govindarajan and others have filed Writ Appeal No.3342/2004 before the Honble Division Bench of this Court and the same was dismissed on 03.11.2008. The Honble Division Bench has already ordered the first respondent i.e., the Government, on 07.08.2006, in W.A.No.1012 of 2006 against W.P.No.25117 of 2005, to consider the request of the petitioner. The request of the petitioner was carefully considered and rejected by the Government vide Letter No.24773/LA1(1)/06-4, dated 20.12.2006.

10. The second respondent further submits that the petitioners Thiru.Govindarajan and three others had filed W.P.No.11190 of 2007 in the High Court against the Land Acquisition in S.No.604 of Mogappair Village and the above case was dismissed on 03.11.2008. In the meantime, an extent of 0.20 acres in S.No.604 part of Mogappair Village was handed over to Thiru.Johnson and others, through Exchange deed as per the Court order dated 05.07.2006 in Contempt Petition No.300/2006 as an alternate land for the S.No.549/2 of Mogappair Village. Hence, revised layout was prepared with the balance extent of 0.24 acres in S.No.604 and with an extent of 2.61 acres in S.No.605 of Mogappair Village and sent to the CMDA for approval on 31.10.2006 but as the Honble Minister for Revenue and Housing Department has announced to take up New Housing Schemes by Tamil Nadu Housing Board during 2008-2009, the revised layout was prepared and sent for approval to CMDA which was again revised for the construction of 160 HIG flats in S.No.604 part & 605 with total extent of 2.85 acres and approved by the Board in its Lr.No.TP TNHB No.1/2011 dated 11.01.2011. The same has been submitted for approval of CMDA through the Commissioner, Ambattur Municipality vide this office letter No.SS/740/2000, dated 02.03.2011. In the meantime, the Honble High Court has ordered on 14.12.2010 against the W.P.No.22974 of 2010 and directed the Tamil Nadu Housing Board to take steps to get appropriate orders from the CMDA, within a maximum period of six months from the date of receipt of a copy of this order. The above order was received by them on 24.03.2011. Hence, the Commissioner, Ambattur Municipality sent the above proposal submitted to the Member Secretary, CMDA vide their Lr.No.89/2011/F.3, on 23.08.2011. The Member Secretary, CMDA instructed to remit the amount towards development charges and other charges vide Letter No.L1/11963/2011, dated 24.03.2012 and the amount of Rs.53,000/- (towards Rs.50,000/- for development charges and Rs.3,000/- for layout preparation charges) was remitted vide cheque Nos.27271 and 27272, dated 30.03.2012.

11. The second respondent further submits that the Chennai Metropolitan Development Authority has taken a policy decision to approve the skeleton layout before approving the pucca layout in order to avoid any deviation for allotment of amenities, such as road, park etc., in the scheme. Hence, the CMDA has approved the skeleton layout on 17.05.2012 vide Letter No.L2/11963/11. As per the approved skeleton layout and the instruction of Member Secretary / CMDA, draft Gift Deed specifying the park area etc., was sent to the Zonal Officer / Executive Engineer, Zone-VII, Corporation of Chennai, Ambattur, Chennai-51, vide their office Letter No.SS/740/2000, dated 23.05.2012. To execute the above Gift Deed, Resolution for the same is awaited from the Corporation Council. The second respondent further submits that the petitioners father Thiru.A.Ganesan has filed a writ petition in W.P.No.5444 of 1988 before the High Court in respect of S.No.605 of Mogappair Village. The above writ petition was allowed on 29.04.1991. Since the writ petition was allowed by the Division Bench of Madras High Court, the Tamil Nadu Housing Board has filed the S.L.P.(C)No.2524/1993 in the Honble Supreme Court of India and the above case was ordered on 08.10.1999 with a direction to these respondents to consider the request of the petitioner. The petitioners request has been rejected by the Government in Letter No.29116/LAI(A)/04, dated 23.01.2007. The second respondent further submits that the Tamil Nadu Housing Board has prepared residential plots in the land in Survey Nos.604, 605 of Mogappair Village and this was sent to CMDA vide their office letter No.SS/740/2000, dated 11.04.2001 for getting approval, but CMDA has returned the proposal vide Lr.No.L2/17376/01, dated 09.02.2002 to re-submit the proposal after clearing and levelling the site. Due to continuous Court case in W.P.No.2682 of 2004 and W.P.No.11190 of 2007, further action could not be taken for utilizing the land in Survey Nos.604 and 605 of Mogappair Village. The above said cases were finally dismissed on 03.11.2008. Hence, action has been taken by Tamil Nadu Housing Board for formulating a scheme in land in Survey No.604 part and 605 of Mogappair Village.

12. The second respondent further submits that the contention of the petitioner that the 12(2) notice has not been served to the landowners are not correct. Before passing the award, all necessary land acquisition formalities have been strictly followed by the Land Acquisition Officer. Hence, the land in Survey No.605 of the Mogappair Village with an extent of 2.61 has been taken over from the Land Acquisition Officer, Tamil Nadu Housing Board Scheme on 13.12.1984 and patta has been changed in the name of the Tamil Nadu Housing Board as patta No.375. Further, it is informed that the award amount of Rs.300.15/- was kept under work deposit on 09.04.1983 itself. Hence, the second respondent entreats the Court to dismiss the above writ petition.

13. The highly competent Senior Counsel Mr.M.Venkatachalapathy, appearing for the petitioners contended that till now the physical possession of the subject land was not taken by the Land Acquisition officer, ie., the third respondent herein either from the petitioners father or from the petitioners under Section 16 of the Old Act. Further, he contended that though the award was passed as early as in the year 1984 till today neither the petitioners father nor the petitioners were offered and paid the compensation amount as per award in respect of the subject land and in fact the compensation amount was also not deposited before the competent civil court as envisaged under Section 31 of the Old Act.

14. The highly competent senior counsel for the petitioners further contend that since the compensation was neither offered nor paid to the petitioners father or the petitioners or deposited in the competent civil court and further the physical possession was not taken by the respondents from the landowners, Section 24(2) of the New Act is squarely applicable to the instant case for getting remedy. Hence, the entire acquisition proceedings initiated under the Old Act in respect of the subject land become lapsed. The learned senior counsel to sustain his submissions has cited the following judgments:-

(i) PUNE MUNICIPAL CORPN. vs. HARAKCHAND MISIRIMAL SOLANKI reported in (2014) 3 Supreme Court Cases 183 [LQ/SC/2014/83]

12. To find out the meaning of the expression, compensation has not been paid, it is necessary to have a look at Section 31 of the 1894 Act. The said Section, to the extent it is relevant, reads as follows:

31. Payment of compensation or deposit of same in Court - (1) On making an award under section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.

(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under section 18 would be submitted:

13. There is amendment in Maharashtra - Nagpur (City) in Section 31 whereby in sub-section (1), after the words compensation and in sub-section (2), after the words, the amount of compensation, the words and costs if any have been inserted.

14. Section 31(1) of the 1894 Act enjoins upon the Collector, on making an award under Section 11, to tender payment of compensation to persons interested entitled thereto according to award. It further mandates the Collector to make payment of compensation to them unless prevented by one of the contingencies contemplated in sub-section (2). The contingencies contemplated in Section 31(2) are: (i) the persons interested entitled to compensation do not consent to receive it (ii) there is no person competent to alienate the land and (iii) there is dispute as to the title to receive compensation or as to the apportionment of it. If due to any of the contingencies contemplated in Section 31(2), the Collector is prevented from making payment of compensation to the persons interested who are entitled to compensation, then the Collector is required to deposit the compensation in the court to which reference under Section 18 may be made.

15. Simply put, Section 31 of the 1894 Act makes provision for payment of compensation or deposit of the same in the court. This provision requires that the Collector should tender payment of compensation as awarded by him to the persons interested who are entitled to compensation. If due to happening of any contingency as contemplated in Section 31(2), the compensation has not been paid, the Collector should deposit the amount of compensation in the court to which reference can be made under Section 18.

16. The mandatory nature of the provision in Section 31(2) with regard to deposit of the compensation in the court is further fortified by the provisions contained in Sections 32, 33 and 34. As a matter of fact, Section 33 gives power to the court, on an application by a person interested or claiming an interest in such money, to pass an order to invest the amount so deposited in such government or other approved securities and may direct the interest or other proceeds of any such investment to be accumulated and paid in such manner as it may consider proper so that the parties interested therein may have the benefit therefrom as they might have had from the land in respect whereof such money shall have been deposited or as near thereto as may be.

17. While enacting Section 24(2), Parliament definitely had in its view Section 31 of the 1894 Act. From that one thing is clear that it did not intend to equate the word paid to offered or tendered. But at the same time, we do not think that by use of the word paid, Parliament intended receipt of compensation by the landowners/persons interested. In our view, it is not appropriate to give a literal construction to the expression paid used in this sub-section (sub-section (2) of Section 24). If a literal construction were to be given, then it would amount to ignoring procedure, mode and manner of deposit provided in Section 31(2) of the 1894 Act in the event of happening of any of the contingencies contemplated therein which may prevent the Collector from making actual payment of compensation. We are of the view, therefore, that for the purposes of Section 24(2), the compensation shall be regarded as paid if the compensation has been offered to the person interested and such compensation has been deposited in the court where reference under Section 18 can be made on happening of any of the contingencies contemplated under Section 31(2) of the 1894 Act. In other words, the compensation may be said to have been paid within the meaning of Section 24(2) when the Collector (or for that matter Land Acquisition Officer) has discharged his obligation and deposited the amount of compensation in court and made that amount available to the interested person to be dealt with as provided in Sections 32 and 33.

18. 1894 Act being an expropriatory legislation has to be strictly followed. The procedure, mode and manner for payment of compensation are prescribed in Part V (Sections 31-34) of the 1894 Act. The Collector, with regard to the payment of compensation, can only act in the manner so provided. It is settled proposition of law (classic statement of Lord Roche in Nazir Ahmad) that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.

19. Now, this is admitted position that award was made on 31.01.2008. Notices were issued to the landowners to receive the compensation and since they did not receive the compensation, the amount (Rs.27 crores) was deposited in the government treasury. Can it be said that deposit of the amount of compensation in the government treasury is equivalent to the amount of compensation paid to the landowners/persons interested We do not think so. In a comparatively recent decision, this Court in Agnelo Santimano Fernandes, relying upon the earlier decision in Prem Nath Kapur, has held that the deposit of the amount of the compensation in the States revenue account is of no avail and the liability of the state to pay interest subsists till the amount has not been deposited in court.

20. From the above, it is clear that the award pertaining to the subject land has been made by the Special Land Acquisition Officer more than five years prior to the commencement of the 2013 Act. It is also admitted position that compensation so awarded has neither been paid to the landowners/persons interested nor deposited in the court. The deposit of compensation amount in the government treasury is of no avail and cannot be held to be equivalent to compensation paid to the landowners/persons interested. We have, therefore, no hesitation in holding that the subject land acquisition proceedings shall be deemed to have lapsed under Section 24(2) of the 2013 Act.

21. The argument on behalf of the Corporation that the subject land acquisition proceedings have been concluded in all respects under the 1894 Act and that they are not affected at all in view of Section 114(2) of the 2013 Act, has no merit at all, and is noted to be rejected. Section 114(1) of the 2013 Act repeals 1894 Act. Sub-section (2) of Section 114, however, makes Section 6 of the General Clauses Act, 1897 applicable with regard to the effect of repeal but this is subject to the provisions in the 2013 Act. Under Section 24(2) land acquisition proceedings initiated under the 1894 Act, by legal fiction, are deemed to have lapsed where award has been made five years or more prior to the commencement of 2013 Act and possession of the land is not taken or compensation has not been paid. The legal fiction under Section 24(2) comes into operation as soon as conditions stated therein are satisfied. The applicability of Section 6 of the General Clauses Act being subject to Section 24(2), there is no merit in the contention of the Corporation.

(ii) Raghbir Singh Sherawat vs. State of Haryana reported in (2012) 1 Supreme Court Cases 792 [LQ/SC/2011/1495]

25. The legality of the mode and manner of taking possession of the acquired land has been considered in a number of cases. In Balwant Narayan Bhagde V M.D.Bhagwat Untwalia, J. referred to the provisions of Order 21 Rules 35, 36, 95 and 96 of the Code of Civil Procedure and opined that the delivery of symbolic possession should be construed as delivery of actual possession of the right, title and interest of the judgment debtor. His Lordship further observed that if the property is the land over which there is no building or structure, the delivery of possession over the judgment-debtors property becomes complete and effective against him the moment the delivery is effected by going upon the land. The learned Judge went on to say (SCC pp. 710-11, para 25)

25.When a public notice is published at a convenient place or near the land to be taken stating that the Government intends to take possession of the land, then ordinarily and generally there should be no question of resisting or impeding the taking of possession. Delivery or giving of possession by the owner or the occupant of the land is not required. The Collector can enforce the surrender of the land to himself under section 47 of the Act if impeded in taking possession. On publication of the notice under Section 9(1) claims to compensation for all interest in the land have to be made; be it the interest of the owner or of a person entitled to the occupation of the land. On the taking of possession of the land under Section 16 or 17 (1) it vests absolutely in the Government free from all encumbrances. It is, therefore, clear that taking of possession within the meaning of Section 16 or 17 (1) means taking of possession on the spot. It is neither a possession on paper nor a symbolical possession as generally understood in civil law. But the question is what is the mode of taking possession The Act is silent on the point. Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking of possession is not necessary. No further notice beyond that under Section 9(1) of the Act is required. When possession has been taken, the owner or the occupant of the land is dispossessed. Once possession has been taken the land vests in the Government.

26.Bhagwati, J. (as he then was) and Gupta, J., who constituted the majority did not agree with Untwalia, J. and observed as under: (Balwant Narayan Bhagde case, SCC pp. 711-12, para 28)

28. ... We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking symbolical possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard-and-fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and invoidable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tahsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tahsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it.

27.In Banda Development Authority v. Moti Lal Agarwal, the Court referred to the judgments in Balwant Narayan Bhagde v. M.D.Bhagwat, Balmokand Khatri Educational and Industrial Trust V State of Punjab, P.K.Kalburqui v. State of Karnataka, NTPC Ltd V Mahesh Dutta, Sita Ram Bhandar Society V Govt. (NCT of Delhi) and culled out the following propositions: (Banda Development Authority case, SCC p. 411 para 37)

i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land.

ii) If the acquired land is vacant the act of the State authority concerned to go to the spot and prepare a panchanama will ordinarily be treated as sufficient to constitute taking of possession.

iii) If crop is standing on the acquired land or building / structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building / structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchanama. Of course, refusal of the owner of the land or building / structure may not lead to an inference that the possession of the acquired land had not been taken.

iv)If the acquisition is of a large tract of land, it may not be possible for the acquiring / designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.

v)If beneficiary of the acquisition is an agency / instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17 (3-A) and substantial portion of the acquired land has been utilized in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken.

28. If the appellants case is examined in the light of the propositions culled out in Banda Development Authority V. Moti Lal Agarwal we have no hesitation to hold that possession of the acquired land had not been taken from the appellant on 28.11.2008 i.e., the day on which the award was declared by the Land Acquisition Collector because crops were standing on several parcels of land including the appellants land and possession thereof could not have been taken without giving notice to the landowners. That apart, it was humanly impossible to give notice to a large number of persons on the same day and take actual possession of the land comprised in various survey numbers (total measuring 214 acres 5 kanals and 2 marlas).

29. In view of the above discussion, we hold that the record prepared by the Revenue Authorities showing delivery of possession of the acquired land to HSIIDC has no legal sanctity and the High Court committed serious error by dismissing the writ petition on the specious ground that possession of the acquired land had been taken and the same vested in the State Government in terms of Section 16.

(iii)PATASI DEVI v. STATE OF HARYANA reported in (2012) 9 Supreme Court Cases 503 [LQ/SC/2012/714] .

A. Land Acquisition Act, 1894 Se.6 and 16 Possession of acquired land Burden of proof Absence of any evidence to show that actual or even symbolic possession of appellants land and house constructed over it was taken by competent authority between 09.12.2009 ie., date of which award was passed and 20.01.2010 ie., date on which writ petition was filed, and the same was handed over to HUDA Hence, impugned judgment dismissing appellants petition solely on ground that it was filed after passing of award, unsustainable Constitution of India Art. 226 Maintainability of final orders.

B. Land Acquisition Act, 1894 Se. 4 and 6 Challenge to Acquisition on ground of colourable exercise of power Evidence showing that though notifications issued under Se. 4 and 6 recited that land was acquired for public purpose, but real object of acquisition was to benefit coloniser R-6 who wanted to develop the area into residential colony Moreover, appellants land was surrounded by land R-6 and earlier also land acquired for same public purpose was transferred to R.6 Hence, acquisition of appellants land was vitiated due to colourable exercise of power Acquisition quashed.

15. The highly competent senior counsel for the petitioners further relied on the following recent judgments to support his contention that:

(i) Karuppathal Vs- State of Tamilnadu reported in (2014) 5 CTC 282 [LQ/MadHC/2014/1945]

(ii) Union of India and others Vs- Shiv Raj and others reported in (2014) 6 SCC 564 [LQ/SC/2014/546]

(iii) Bimla Devi and others Vs- State of Haryana and others reported in (2014) 6 SCC 583 [LQ/SC/2014/302]

(iv) Bharat Kumar -Vs- State of Haryana and another reported in (2014) 6 SCC 586 [LQ/SC/2014/123 ;] ">(2014) 6 SCC 586 [LQ/SC/2014/123 ;] [LQ/SC/2014/123 ;]

(v) P. Jeyadevan Vs- State of Tamilnadu reported in (2014) 4 MLJ page 325

(vi) A.Nagarajan and others -Vs- Secretary to Government and others reported in (2014) 6 MLJ 29 [LQ/MadHC/2014/2374]

16. Relying on the above decisions, the learned senior counsel for the petitioners contended that since the third respondent herein, who is the Land Acquisition Officer under the Old Act did not take the physical possession of the land either from the petitioners or from their father and that the petitioners were neither offered nor paid the compensation amount or deposited before the Civil Court after following the mandatory requirements and procedures before making the deposit in the civil court, the entire proceedings under the Old Act become lapsed in view of the Section 24(2) of the New Act.

17. The competent Senior Counsel for the petitioners further contended that though the second respondent in his counter affidavit had stated that the possession of the subject land was taken by the Tamil Nadu Housing Board from the land acquisition officer on 13.12.1984, no records were produced by the respondents for taking possession of the subject land by the Land Acquisition Officer from the landowners. Moreover, Section 24(2) of the New Act contemplates taking of physical possession by the Land Acquisition Officer from the land owners. So, in the absence of any material to prove the fact that the physical possession of the land was taken from the land owners, the entire proceedings must be deemed to have lapsed. The learned Senior Counsel has very much relied on the judgment by the Honble Apex Court reported in (2012) 1 SCC 792 [LQ/SC/2011/1495] with regard to taking of possession. He further contended that it is admitted by the second respondent in the counter affidavit that the compensation amount for the subject land was only kept under work deposit on 09.04.1983, but interestingly the award itself was made only on 03.02.1984. The said work deposit cannot be termed as payment of compensation to the landowners. There was also no proof for any deposit of the award amount. Hence in view of the various decisions by the Honble Apex Court and the Division Bench of this Court, as stated supra, the entire acquisition proceedings become lapsed.

18. The highly competent counsel Mr.B.Vivekavanan appearing for the second and third respondents submits that the first respondent had issued a G.O. in the year 1975 for acquiring the petitioners land and others lands to an extent of 513.82 acres for implementing the Housing Scheme in the Suburban area of Chennai. Accordingly, the third respondent had initiated Land Acquisition Proceedings for acquiring the said lands. Out of the total extent of the said land, the petitioners land to an extent of 2.61 acres comprised in S.F.No.605 is situated in Mogappair Village. The third respondent is the Land Acquisition Officer and the second respondent is the requisitioning body. The third respondent had issued a publication under Section 4(1) of the Land Acquisition Act, 1894. Subsequently, an enquiry was conducted under Section 5A and the father of the petitioners had participated in the said enquiry and then a declaration was published under 6 of the Act. Subsequently, an award had been passed in Award No.3 of 1984, dated 03.02.1984. The said housing implementation scheme had not been executed due to non access. The father of the petitioners had filed writ petition in W.P.No.5444 of 1988 before this Court and this matter went up to the Honble Supreme Court of India, wherein the SLP was allowed on 08.10.1999. As such, the delay had been caused since the litigation was pending, but the delay is not on the part of the respondents.

19. The highly competent counsel appearing for the second and third respondents further submits that the other adjacent land owner Mr.Govindarajan and 3 others had filed another writ petition which was dismissed in the year 2008 and as such, the implementation of the housing scheme could not be completed within a stipulated period. The compensation amount a sum of Rs.300.15/- was kept under a work deposit. The acquired land had been handed over to the second respondent herein / Housing Board by the first respondent. Thereafter, the patta bearing No.375 has been changed in the name of Tamil Nadu Housing Board. As such, the relevant records pertaining to the petitioners land have been mutated in the name of Housing Board. Due to non-availability of access, the Honble Minister for Housing has announced to take up new housing schemes by the Tamil Nadu Housing Board during the year 2008-2009. Accordingly, the revised lay out sent for approval to Chennai, Metropolitan Development Authority was again revised for construction of 160 HIG flats in the said petitioners lands and adjacent lands in Survey No.604. Therefore, the said land is absolutely required for implementation of housing scheme in the Chennai Sub Urban area. Therefore, the petitioners land had been acquired after strictly adhering to the Land Acquisition Act, 1894 and the said property had been taken over and compensation also remitted under the work deposit and as such, considering the factual position of the case, the writ petitioners prayer is not maintainable. The highly competent counsel in support of his argument has not produced any records regarding the possession taken over by the third respondent and handing over of the same to the second respondent, however produced only patta copy. Regarding deposit also, no document was produced. Inspite, the highly competent counsel entreats the Court to dismiss the above writ petition.

20. The very competent Additional Government Pleader Mr.M.S.Ramesh appearing for the first respondent submits that the Government had issued a G.O.Ms.No.261, Housing & Urban Department, dated 23.10.1975, for acquiring the vast land in the Mogappair Village, i.e., a suburban area of Chennai, in order to implement the housing scheme. As per G.O, the Land Acquisition Notification had been published in the Government Gazette and in various daily newspapers. After acquiring the said land as per the Old Act, a declaration was published as per G.O.Ms.No.1515, dated 10.11.1978. Subsequently, the compensation amount had been deposited. Now, the acquired land is under the lawful custody of the second respondent and they are maintaining the said property without any lacuna or lapse and the Land Acquisition Proceedings had been completed. Under the circumstances, the petitioners have no locus-standi to claim the said property from the respondents after an inordinate delay.

21. Having considered the submissions made by the learned Senior Counsel for the petitioners and the counsel for the respondents 1 to 3 and on perusal of the counter affidavit and the typed set of papers filed by the second respondent, as well as the various decisions referred to above on Section 24(2) of the New Act, this Court is of the view that:-

(i) In the counter affidavit filed by the second respondent it is stated that the possession of the land was taken from the Land Acquisition Officer on 13.12.1984 by the Tamilnadu Housing Board and consequently the patta stood in the name of the Tamilnadu Housing Board as per Patta No.375 and the second respondent is in possession of the land till date. But, no documents were produced before this Court, evidencing the taking the possession of the land by the third respondent ie., the Land Acquisition Officer, from the land owners under Section 16 of the Old Act. Further, there was no document produced to substantiate the claim of the Housing Board that the possession of the land was taken on 13.12.1984 from the Land Acquisition Officer. The mode and manner of taking possession of the land under the Land Acquisition Act (Old Act) is clearly spelt out in the judgments reported in (i) Raghbir Singh Sherawat v. State of Haryana reported in (2012) 1 Supreme Court Cases 792 [LQ/SC/2011/1495] and (ii) PATASI DEVI v. STATE OF HARYANA reported in (2012) 9 Supreme Court Cases 503 [LQ/SC/2012/714] . Moreover, section 24(2) of the New Act stipulates that physical possession of the land should be taken by the Land Acquisition Officer under the Old Act. As the respondents did not produce any documents for taking possession of the land from the land owners under the Old Act, the patta in the name of the Housing Board will not serve any purpose. Since, with regard to the contingency of taking physical possession as envisaged under section 24(2) of the New Act, the respondents are not in a position to sustain their contention by way of production of any records, the petitioners are entitled to get a relief under section 24(2) of the New Act.

(ii) It is stated in the counter affidavit of the second respondent that in respect of the present acquisition an award was passed in Award No.3/1984, dated 03.02.1984 and the award amount for a sum of Rs.300.15 was kept under work deposit on 09.04.1983. It is further stated that the contention of the petitioners that 12(2) notice was not served is not correct and all necessary land acquisition formalities have been strictly followed by the Land Acquisition Officer. Though the second respondent by way of filing counter affidavit has rebutted the contention of the petitioners in respect of service of notice under section 12(2) of the Old Act after the passing of award as an incorrect one, the second respondent did not file any documents or any records to show that the land owners were served with the notice under section 12(2) of the Old Act by the Land Acquisition Officer, after passing of the award, which is a mandatory one. Curiously, though in the present case, the award was passed only on 03.02.1984, a sum of Rs.300.15 which is the award amount as per the counter affidavit of the second respondent was kept under work deposit as early as on 09.04.1983 ie., even prior to the passing of the award. Except the said statement in the counter affidavit with regard to the deposit of the award amount, no records were produced by the respondents to prove the same. Moreover, as held in catena of decisions reported as stated above by the Honble Apex Court and this Court, the deposit of the award amount under the work deposit ie., the revenue deposit shall not be regarded as paid as the same is not in accordance with the procedures provided under section 31(2) of the Old Act. As there was no proof for deposit of the compensation amount before the competent Civil Court by the Land Acquisition Officer in the manner prescribed under the Old Act and the deposit in the revenue department cannot be termed as paid, the entire land acquisition proceedings initiated under the Old Act must be deemed to have lapsed in terms of the Section 24(2) of the New Act. Hence, the petitioners are entitled for a relief under the New Act.

22. Upon considering the facts and current legal position of the case and arguments advanced by the learned counsels on all sides and on perusal of the counter affidavit and the documents filed in the typed set and this Courts view listed above as (i) and (ii), this Court allows the writ petition and declares that the land acquisition proceedings initiated under the Land Acquisition Act, 1894, in respect of an extent of 2.61 acres comprised in S.F.No.605 situated at Mogappair Village, Saidapet Taluk, Thiruvallur District, belonging to the petitioners, has lapsed in view of the Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (Act 30 of 2013).

23. In the result, the writ petition is allowed. There is no order as to costs.