Madras High Court
C.Ravi Subramanyam vs State Of Tamil Nadu on 12 October, 2015
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS CAV ON 24/07/2015 DATED:12/10/2015 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN W.P.No.21415 of 2014 & M.P.Nos.2 and 3 of 2014 & M.P.No.1 of 2015 C.Ravi Subramanyam ... Petitioner Vs. 1.State of Tamil Nadu Represented by the Secretary to Government Housing and Urban Development Department, Fort St. George, Chennai 600 009. 2.The Special Tahsildar (Land Acquisition), Unit - 4, Outer Ring Road Project, Chennai Metropolitan Development Authority, Koyambedu, Chennai 600 092. 3.The Chennai Metropolitan Development Authority, Represented by its Member Secretary, Thalamuthu Natarajan Building, Egmore, Chennai 600 008. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, calling for the records of the respondents related to the land acquisition proceedings in respect of the petitioner's land situated in Survey Nos.156/1B and 156/2B admeasuring 0.72.0 Hectares in Block No.6 in Minjur Village, Ponneri Taluk culminating in letter No.168/2010/A1/Unit-4 dated 06.01.2014 on the file of the second respondent herein and quash the same as being contrary to the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 and consequently direct the respondents to proceed further in respect of acquisition of land and payment of compensation in respect of the outer ring road project strictly in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013, including payment of compensation as a pre-condition to the acquisition strictly in the manner set forth therein. For Petitioner : Mr.Rahul Balaji for Mr.Sathish Parasaran For Respondents : Mr.V.Shanmugasundar (for R1 & R2) Government Advocate Mr.P.Tamilmani (for R3) (for CMDA) - - - O R D E R
The short facts of the case are as follows:-
The petitioner is the owner of the lands and building situated in survey Nos.156/1B and 156/2B admeasuring 0.72.0 Hectares in Block No.6 in Minjur Village, Ponneri Taluk. The Deputy Secretary, Tamil Nadu Housing and Urban Development Department issued a paper publication dated 10.07.2012 under Section 4(1)(A) of the Land Acquisition Act, 1894 (hereinafter referred to as the "Repealed Act"), for acquisition of lands specified therein and situated in Block No. 6 in Minjur Village, Ponneri Taluk, for a public purpose viz., for formation of lower outer ring road under Outer Ring Road Scheme. Under this notification, powers were granted to the second respondent herein for discharge of functions under Section 4(2) and 5(A) of the Repealed Act. Pursuant to the Paper publication, the second respondent issued notice in Form 3A in Na.Ka. 168/2011/A1/Unit-4 dated Nil-08-2012 under Sub-Rule 4(1) of Rule 3 of the Rules framed under Section 55(1) of the Repealed Act. The notice stated that the lands specified in the notification issued in Government Gazette No.28, pages 348 and 349 and paper publications issued in Dr.Namadhu MGR and Makkal Kural both dated 10.07.2012 are required or likely to be required for laying of lower outer ring road under Outer Ring Road Scheme and that all persons who are interested in the lands were required to submit a statement of objection, if any, within 15 days to the second respondent. It further called for all persons who had submitted their objections to appear before the second respondent, either in person or through a counsel at 11.00 a.m. on 23.08.2012 and submit their oral and documentary evidence.
2.The petitioner further submits that the second respondent herein, after considering the objections received in writing and through personal hearing recorded the proceedings in Na.Ka.No.68/2010/A1/Unit-4 dated 21.12.2012, wherein, pursuant to the personal hearing conducted by him on 23.08.2012, the second respondent considered the objections of the lands owners / interested persons in respect of the lands specified in the notification issued in Government Gazette No.28, pages 348 and 349. After recording that the pattadars and interested persons have not objected to the acquisition of their lands and their only objections were regarding the quantum of compensation, the second respondent has then proceeded to reject the objections of the lands owners / interested persons as to the quantum of compensation on the ground that the requisitioning authority viz., the third respondent has stated that the quantum of highest compensation sought for by the land owners / interested persons could not be accepted by the third respondent and directed that steps be taken for acquisition of the lands under Section 6 of the Act.
3.The petitioner further submits that the second respondent then issued Form-7 in Letter No.168/2010/A1/Unit-4 dated 04.12.2013, under Sections 9(3) and 10 of the Repealed Act to the Petitioner herein, directing him to furnish a statement in writing to the authority on 17.12.2013 at 11.00 a.m. before the second respondent at the venue specified therein, stating the details of interest that the individual concerned has over the land mentioned in the form, the compensation that may be sought for the lands, objections, if any, in respect of measurements of the land taken under Section 8 of the Act and the details of all persons interested in the land, as joint owners, co-owners, mortgagees, tenants or in any other manner and the benefits that may have accrued from the land for the last three years. The petitioner herein, after having attended the personal hearing before the second respondent and submitting the required documents, once again objected to the quantum of compensation and vide letter dated 18.12.2013 addressed to the second respondent, recorded his objections as to the quantum of compensation so that the second respondent could consider the same before passing an award under Section 11 of the 'Repealed Act' as prescribed. In the meanwhile, the Central Government passed the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the "New Act") which came into force from 01.01.2014. Section 24 of the New Act contains a retrospective provision, by way of which provisions of the New Act will apply to land acquisition proceedings initiated under the Repealed Act.
4. The petitioner further submits that while so, he was shocked to receive notice under Section 12(2) of the 'Repealed Act' in letter No.168/2010/A1/Unit4 dated 02.01.2014 and 06.01.2014, when the 'Repealed Act' had ceased to be in force, informing the petitioner of the award No.7 of 2013 passed under Section 11 of the Repealed Act. The petitioner submits that the quantum of award decided by the second respondent, did not take into consideration any of the objections raised by the petitioner and other landowners, regarding the inadequacy of the compensation since the market value and guideline value of the lands were higher than those determined by the second respondent. The petitioner, then, vide a letter dated 13.01.2014 wrote a detailed representation addressed to all the respondents, bringing to their notice that the award under Section 11 has purportedly been passed only on 06.01.2014, which is well after the 'New Act' was brought into force and that the award passed under Section 11 would now be invalid under law as the 'Repealed Act' had ceased to be in force from 01.01.2014. The petitioner also brought to the notice of the respondents that, Section 24 of the 'New Act' has been specifically drafted to deal with such a situation and that Section 24(2) of the 'New Act' clearly provides that when an award under Section 11 of the 'Repealed Act', has not been passed in any proceeding initiated under the 'Repealed Act', or if possession is not taken then, all provisions of the New Act relating to the determination of compensation shall apply. In response to the said letter, the fourth respondent, wrote a letter vide letter No.2113/2014/AF3, dated 05.02.2014, to the second respondent, directing him to consider the representation sent by the petitioner and convey the decision so taken to the petitioner. However, the petitioner has not received any information from the second respondent regarding any decision taken in respect to the representation sent by the petitioner.
5. The petitioner further submits that while so, the second respondent has sent a final reminder Memo dated 07.05.2014 informing the petitioner that a notice under Section 12(2) of the Land Acquisition Act, 1894 was issued to him for receiving the compensation for his land; that he was instructed to submit necessary original documents to the office; that the said documents were not produced till that date and that the petitioner shall appear in person in the office of the authority with original documents, failing which steps will be taken to credit the compensation for his lands in the revenue account. The petitioner once again vide letter dated 17.05.2014, wrote a detailed representation to the second respondent, bringing to his notice the various representation of the petitioner and that the second respondent had sent the final reminder memo without reference to any of the representations sent by the petitioner. The petitioner also brought to the notice of the second respondent an article in the newspaper on the Government's decision to pay the amount decided now as interim payment subject to an undertaking that a final amount will be determined in accordance with the 'New Act' and payment of difference will be made accordingly. However, once again the second respondent has failed to even respond to the petitioner's letters and communications. The petitioner states that various persons claiming to be representatives of the Contractor are attempting to enter upon the land. Such persons last came on 24.07.2014 and after being informed of the fact that compensation had not been paid have left. The petitioner apprehends that the respondents would interfere with the petitioner's rights. Hence, the petitioner entreats the Court to allow the above writ petition.
6.The second respondent herein has not filed any counter in the writ petition. Except for the particulars regarding extent of land and award number and award date, the counter affidavit filed by the second respondent in the connected writ petition in W.P.No.21416 of 2014 is similar in nature and runs as follows:-
The second respondent submits that the Government of Tamil Nadu have decided to form an Outer Ring Road joining the Southern, Western and Northern Parts of Chennai City for a total length of 60.15 Kms and it is being constructed in two phases around the Chennai Metropolitan area in Tamil Nadu. The proposed road will connect the GST Road starting at Vandalur Village in Kancheepuram District and ending at Minjur Village in Tiruvallur District approximately to a length of 60.15 Kms. The key object of the project is to allow heavy vehicles to journey outside of the Chennai City to minimize the traffic congestion within the city's central areas. The lands for the project were acquired in two phases. The Chennai Metropolitan Development Authority acquired the lands for the first phase and took possession of the lands to a length of 29.65 Kms from Vandalur Village in Kancheepuram District to Nemilicheri at Nazarathpet and NH-205 in Nemilicheri village in Tiruvallur District covering 15 Villages in Kancheepuram District and 14 villages in Tiruvallur District. Similarly the Chennai Metropolitan Development Authority acquired the lands for the second phase and took possession of the lands to a length of 30.50 Kms from Nemilicheri village to Tiruvotriyur Ponneri Panchetti Road in Minjur Village in Tiruvallur District covering 28 villages in Tiruvallur District. The second respondent further submits that the Government of Tamil Nadu in G.O.Ms.No.10, Highways and Minor Ports (HN2) Department, dated 23.01.2012 have accorded Administrative sanction for the development of Chennai Outer Ring Road Phase-II from Nemilicheri to Minjur for a length of 30.50 Kms under DBFOT (Design, Build, Finance, Operate and Transfer) on Annuity basis. The Tamil Nadu Road Development Company Limited was appointed as Managing Associate for the implementation of the above project road and M/s.GVR Ashoka Chennai Outer Ring Road Limited was appointed as the Concessionaire for the development of project road and the development work commenced on 12.03.2014. The Concessionaire was permitted access and Right of Way in the lands acquired and handed over by CMDA and the development work is in progress.
7. The second respondent submits that the lands owned by the petitioner in Survey Nos.156/1B and 156/2B admeasuring 0.72.0 Hectares in Block No.6 in Minjur Village, Ponneri Taluk was acquired as per Award No.7 of 2013 dated 06.01.2014 of this respondent and the possession of the lands were taken over and handed over to CMDA on 02.07.2014. The second respondent submits that the petitioner, aggrieved by the quantum of compensation awarded for acquisition of 0.72.0 Hectare of lands owned by him, has filed this writ petition, seeking directions against the respondents to refrain from proceeding further under the Land Acquisition Act 1894 and to compensate the petitioner in accordance with Section 24(1)(a) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The second respondent further submits that in this case all the procedures laid down in the Land Acquisition Act 1894 and the rules framed there under have been followed and the formalities were observed in all the stages of the Land Acquisition proceedings. The request of the petitioner to pay compensation in accordance with Section 24(1)(a) of the Right to Fair compensation and Transparency in the Land Acquisition, Rehabilitation and Resettlement Act 2013 was not considered since all the Land Acquisition proceedings were made only in accordance with the provisions of the Land Acquisition Act 1894 and the rules framed there under and not in accordance with the provisions of the Right to Fair compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 herein after referred to as "New Act"
8. The second respondent further submits that the objections of the petitioner with reference to the quantum of compensation made in his letter dated 18.12.2013 to the effect that the quantum of compensation should be with reference to the New Act was not considered for the reasons that the New Act has come in to effect only on 01.01.2014. The award enquiry was conducted in this case on 13.12.2014 and on 17.12.2013 (i.e.) prior to the introduction of New Act and in accordance with the Land Acquisition Act, 1894. Hence, the contention of the petitioner is premature one and it deserves no consideration. The second respondent further submits that the contention of the petitioner that the New Act has come into force from 01.01.2014 and Section 24 of the New Act contains retrospective provision by way of which the provision of the New Act will apply to Land Acquisition proceedings initiated under the Repealed Act is not correct. In accordance with Section 24(1)(b) of the New Act, it specifically states that "where an award under Section 11" has been made, then such proceedings shall continue under the provision of the said Land Acquisition Act as if the said Act has not been repealed. In this case, the award was passed in Award No.7 of 2013, dated 06.01.2014 by the Land Acquisition Officer after having conducted award enquiry, in which the petitioner has participated and filed his objection.
9. The second respondent further submits that after passing of award, as a continuing Land Acquisition process, a notice was issued to the petitioner under Section 12(2) of the Land Acquisition Act, 1894 and as such, the action of the respondent is in accordance with due process of Law and there is no necessity to consider the quantum of compensation under the New Act as contended by the petitioner after passing award prior to the coming of 'New Act' into effect. This respondent further submits that it is true that this petitioner has made a representation dated 13.01.2014, to fix the quantum of compensation under Section 24 of the New Act and such a request could not be considered in view of the fact that the award has been passed on 27.12.2013 and on 30.12.2013 (i.e) before coming into the force of the New Act. It is submitted that the issue of notice under Section 12(2) of the Land Acquisition Act, 1894, is a process of payment of compensation to the land owner as per the award passed and the petitioner was instructed to produce necessary original documents to prove his ownership over the Land acquired and it is in accordance with the procedure laid down. This respondent submits that the contention of the petitioner that he has brought to the notice of the second respondent about an Article in the Newspaper on the Government decision to pay the amount decided now as interim payment subject to an undertaking that a final amount will be determined in accordance with New Act and payment of difference made accordingly, has no relevance at all as Section 25(1)(a) of the New Act provides that "where no award under Section of the Act 1894, has been made then all provision of the New Act relating to the determination of compensation should apply".
10. The second respondent further submits that based on the above provisions, the Government of Tamil Nadu in G.O.Ms.No.88 Revenue (LA-I) Department dated 21.02.2014 have issued executive instructions that in all the Land Acquisition cases wherein the process under the Land Acquisition Act, 1894 has started (i.e.,) the Notification under Section 4(1) has been issued that the award has not been made, the action as specified under Section 24(1)(a) of the New Act may be taken and however the interim compensation should be determined based on the procedures already in vogue subject to the additional compensation being paid as per the New Act and the process initiated under the Land Acquisition Act 1894 should be allowed to continue. The contention of the petitioner that the award has been passed in this case in terms of Section 11 of the Land Acquisition Act 1894 only on 06.01.2014 is not at all correct and denied since the award was pronounced on 30.12.2013 after getting the approval of the draft award by the Additional Chief Secretary / Commissioner of Land Administration on 19.12.2013 and 27.12.2013 as per Section 11(1) of the Land Acquisition Act, 1894. The contention of the petitioner that no opportunity has been given to him to make a representation is not correct since the opportunity provided in the Land Acquisition Act 1894 have been given to the petitioner at the time of 5A enquiry and during the Award enquiry.
11.The second respondent further submits that in this case the award has been passed prior to 01.01.2014. Though notice was issued to the petitioner under Section 12(2) of the Land Acquisition Act 1894 to receive the compensation, the petitioner has not chosen to produce the required original records to prove his ownership and receive the compensation and the possession of the land was taken over and handed over to Chennai Metropolitan Development Authority on 02.07.2014. This respondent submits that after making award by the Land Acquisition Officer, he becomes entitled to take possession of acquired land. It was held in the case of G.Ranganathan Vs. State of Tamil Nadu (2009) 1 LW 31 : (2009) WLR 37 : (2009) 2 MLJ 129 (MAD) that once the land vests with the authorities, the petitioner cannot seek for restitution of possession and writ petitions filed after award passed under Section 11 of the Land Acquisition Act is not maintainable. It was also held (in the case of S.Harshavarthan vs. Government of Tamil Nadu (2007) 5 CTC 241) that writ petition challenging the land acquisition proceedings should not be entertained after award has been passed. This respondent submits that the Chennai Outer Ring Road Phase-II is being formed for the benefit of the public at large and with the object to ease traffic congestion and for even dispersal of traffic in the Chennai City and therefore the private interest should pave a way for the public interest. It is pertinent to note that the work relating to the formation of the Chennai Outer Ring Road project Phase-II has already commenced and hence, the petitioner's land is crucial for the completion of the project giving connectivity from Nemilicheri to Minjur and to put the road in complete shape for the use of general public. Hence, the second respondent entreats the Court to dismiss the above writ petition.
12. The highly competent counsel Mr.Rahul Balaji appearing for the petitioner submits that the petitioner is the owner of the lands situated in Survey Nos.156/1B and 156/2B admeasuring 0.72.0 Hectares in Block No.6 in Minjur Village, Ponneri Taluk. The Deputy Secretary attached to the Tamil Nadu Housing & Urban Development Department had issued a paper publication dated 10.07.2012 under Section 4(1)(A) of the Land Acquisition Act, 1894 to acquire the said property for the purpose of formation of lower outer link road under the Outer Ring Road Scheme. The second respondent / Land Acquisition Officer issued a notice in Form 3A and informed the petitioner stating that the notification has been published in the Government Gazette as well as in the paper publication and called for objection. All the landowners including the petitioner had submitted their objections respectively. After recording that the pattadars and interested persons have not objected to the acquisition of their lands and their only objections were regarding the quantum of compensation, the same was rejected on the ground that the landowners had sought for highest compensation and the same could not be accepted.
13. The highly competent counsel appearing for the petitioner further submits that the second respondent had issued Form 7, directing the landowners to furnish a statement in writing regarding details of interest over the land. The landowners have submitted the required documents pertaining to the subject matter of the land. Once again the petitioner requested for payment of adequate compensation since the compensation assessed by the second respondent was on the lower side. Under the circumstances, the Government of India passed the New Act 30/2013, which came into force from 01.01.2014. As per Section 24(2) of the Act, the petitioner is entitled to receive remedy i.e., the land should be released from the acquisition since the subject matter of the property was under the care and maintenance of the petitioner and the compensation amount had also not been paid to the petitioner. Under the circumstances, the petitioner had received notice under Section 12(2) of the Old Act and was informed that an award has been passed under Section 11 of the Old Act. The compensation is inadequate when compared with the market value and the guideline value.
14. The highly competent counsel appearing for the petitioner further submits that the petitioner made a representation stating that the award has been passed, after the new Act came into force and as such, the entire acquisition proceedings is not valid. On the said representation, the second respondent had not responded. While so, the second respondent has sent a final reminder on 07.05.2014 informing the petitioner to receive the compensation after producing the required documents pertaining to the subject land. Thereafter, the petitioner once again sent a detailed representation to the second respondent and informed that the New Act came into force and is in operation and as such, the respondents acquisition proceedings is a blatant violation of the constitutional rights. The respondents had not paid any compensation to the petitioners and the subject land also had not been taken by the Land Acquisition Officers. As such, the entire acquisition proceedings is not fit to be operated upon any further. However, the petitioner is entitled to receive adequate compensate but that also has not been considered by the respondents. All the Revenue Records at present stands in the name of the petitioner. Therefore, the highly competent counsel entreats the Court to set-aside the impugned notices dated 21.01.2014 and 06.01.2014 respectively.
15. The highly competent Government Advocate Mr.V.Shanmugasundar appearing for the respondents 1 and 2 submits that the first respondent had issued a Government Order for acquiring the petitioner's land and others lands for the public purpose to form an outer ring road adjoining to to Southern, Western, Northen parts of the Chennai City for a total length of 60.15 kms and it is being constructed in 2 phases around the Chennai Metropolitan area in Tamil Nadu. The proposed road will connect the GST Road starting at Vandalur Village and ending at Minjur Village. The major object of the project is to allow heavy motor vehicles to journey outside of the Chennai City in order to minimize the traffic congestion within the City's central areas. The highly competent Government Advocate further submits that the lands for the project was acquired in two phases. The highly competent Government Advocate further submits that the Tamil Nadu Road Development Company Limited has been appointed as Managing Associate for implementation of the above mentioned project and M/s.GVR Ashoka Chennai Outer Ring Road Limited has been appointed as the concessionaire for the development of the project road and the development work commenced on 12.03.2014. The highly competent Government Advocate further submits that the award has been passed on 27.12.2013 and possession of the lands were taken over accordingly. Therefore, the petitioner is seeking relief under Section 24(2) of the New Act will not be applicable in the instant case. Hence, the highly competent counsel requests this Court to dismiss the above writ petition.
16. The highly competent counsel Mr.P.Tamilmani appearing for the third respondent submits that the subject lands have been acquired and handed over to the contractor viz., the Tamil Nadu Road Development Company Limited and M/s.GVR Ashoka Chennai Outer Ring Road Limited. The development work has commenced on 12.03.2014. The highly competent counsel further submits that the third respondent had acquired the said lands to an extent of 29.65 kms covering the Tiruvallur and Kancheepuram Districts. Likewise, the second phase to an extent of 30.50 kms covering Tiruvallur District had been taken over by the third respondent and handed over to the contractors and award also has been passed in favour of the landowners. Further, the petitioner has not objected for acquiring the lands, but has sought only a higher compensation for the subject land. Hence, the highly competent competent counsel prays to dismiss the above writ petition.
17. From the above discussions, this Court is of the view that:-
(i) The first respondent had issued a G.O.Ms.No.10, dated 23.01.2012 for acquiring the lands for the public purpose in order to form an Outer Ring Road joining the Southern and Western and Northern parts of Chennai City for a total length of 60.15 kms. The proposed road will connect the GST Road starting from Vandalur Village and terminating at Minjur Village. The project is to allow heavy motor vehicles to journey outside the Chennai City to minimize the traffic congestion within the City's central areas. Therefore, on considering that the above project has been put into effect only to decongest vehicular movements and provide environmental safety for the population of City, it is of paramount importance to execute the above mentioned Outer Ring Project.
(ii) The third respondent acquired the lands in two phases, the first phase to an extent of 29.65 km covering 29 villages, while the second phase to an extent of 30.50 kms and covering 28 villages and the possession has been taken in both phases. The project has commenced from 12.03.2014. As such, the said project is being carried essentially for the public purpose. The award has been passed in favour of the landowners. The third respondent had handed over acquired lands to the contractors. The petitioner is very particular on adequate compensation.
(iii) The petitioner has made representations to the respondents for higher compensation since the property is situated in the Southern area and as such, the landowner should be compensated in a fair manner. Hence, the petitioner is directed to submit one more fresh representation to the Competent Authority and after receiving the said representations, the Authority concerned shall consider the representation on merits after a due enquiry. However, the petitioner is at liberty to withdraw the initial compensation amount without prejudice, after complying with required formalities of the respondents.
18. On considering the current factual position of the case and arguments advanced by the highly competent counsels on all sides and on perusing the typed-set of papers and the views of this Court as mentioned above (i) to (iii), this Court dismisses the above writ petition. However, this Court does not permit the petitioner to file an appeal against this Court order regarding acquisition proceedings, but the petitioner is not satisfied with the quantum of compensation, he is at liberty to file a review petition for a fair compensation with substantial document. There is no order as to costs. Consequently, connected miscellaneous petitions are closed.
12/10/2015
(1/3)
Index : Yes/No.
Internet : Yes/No.
r n s
C.S.KARNAN, J.
r n s
To
1.The Secretary to Government,
Government of Tamil Nadu,
Housing and Urban Development Department,
Fort St. George,
Chennai 600 009.
2.The Special Tahsildar (Land Acquisition),
Unit - 4, Outer Ring Road Project,
Chennai Metropolitan Development Authority,
Koyambedu, Chennai 600 092.
3.The Member Secretary,
The Chennai Metropolitan Development Authority,
Thalamuthu Natarajan Building,
Egmore, Chennai 600 008.
Pre Delivery Order made in
W.P.No.21415 of 2014 &
M.P.Nos.2 and 3 of 2014 &
M.P.No.1 of 2015
12 /10/2015
(1/3)