Madras High Court
Subramaniam vs The Union Of India on 1 September, 2015
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CAV ON 23/09/2014
DATED: 01/09/2015
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
W.P.No.32005 of 2007 &
M.P.Nos.1 of 2007 & 1 of 2014
1.Subramaniam
2.N.Krishnan
3.Rajamma
4.S.Nagamani
5.S.Nadarajan
6.S.Kumaraswamy ... Petitioners
Vs.
1.The Union of India,
Rep. by the Secretary to Government,
Ministry of Environment and Forest,
New Delhi.
2.The State of Tamil Nadu,
Rep. by the Secretary to Government,
Revenue Department,
Fort St.George, Chennai - 600 009.
3.The State of Tamil Nadu,
Rep. by the Secretary to Government,
Fisheries Department,
Fort St.George, Chennai - 600 009.
4.The State of Tamil Nadu,
Rep. by the Secretary to Government,
Backward Welfare Department,
Fort St.George, Chennai - 600 009.
5.The State of Tamil Nadu,
Rep. by the Secretary to Government,
Environment and Forest Department,
Fort St.George, Chennai - 600 009.
6.The District Collector,
Kanyakumari District
at Nagercoil.
7.The Revenue Divisional Officer,
(Land Acquisition Officer),
Padmanabhapuram,
Kanyakumari District.
8.The Assistant Director of Fisheries,
Vadaserry, Nagercoil,
Kanyakumari District. ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India for a Writ of Certiorari, to call for all the connected and relevant records relating to the notices M1/5080/2006, dated 13.09.2007 issued by the seventh respondent and acquisition proceedings of the second respondent and quash the same.
For Petitioner s : Mr.D.Sadhasivam
For Respondents : Mr.M.S.Ramesh
Additional Government Pleader
for R2 to R4 & R6 to R8
Mr.B.Sekar, CGSC for R1
Mr.M.K.Subramanian
Special Government Pleader for R5
(Forests)
- - -
O R D E R
The petitioners submit that they are the owners of Re-survey Number 445 of panikulam Village in Vilavancode Taluk in Kanyakumari District having an extent of about 5 acres of land. It is a coconut garden. The petitioners are in separate possession and enjoyment of their respective portions allotted to them under partition effected among the family members. The petitioners are paying proportionate land tax to the Government. The District Backward Welfare Officer sent a communication to first petitioner and second and fourth petitioners dated 30.05.2006, asking them to attend the meeting convened by the District Collector for acquiring and fixing the compensation for the lands proposed for the construction of Thengaipattanam fishing harbour by direct discussion on 06.06.2006 at 5.30 p.m., in the Collectorate, Kanyakumari District. The first petitioner attended the meeting along with other two petitioners. Their talks ended in failure and the matter ended there. Suddenly after one year and 3 months the first petitioner and other petitioners received Notice under Section 9(3) and 10 of the Land Acquisition Act stating that the Government have proposed to take the lands mentioned in the schedule under the Act 1 of 1894 (India) for the use of 'tpnrc& $d';fs;', and they have been required to appear on 28.09.2007 at 11.00 a.m., at Panikulam Village Office before the Revenue Divisional Officer, Padmanabhapuram and to give a statement signed by them or through authorized agent about the nature of their interest in the land and the amount of compensation for the land. The notices were served on them on 14.09.2007. Hence, the petitioners have filed the above writ petition.
2. The seventh respondent has filed a counter affidavit on behalf of him and on behalf of the respondents 1 to 6 and 8 and resisted the above writ petition. The seventh respondent submits that Kanyakumari District with a coastal length of 72 km has 42 fishing villages located all along the coast. Fish landings are taking place at 45 places, out of which, 3 are major (Chinnamuttom, Colachel and Thengaipattanam) and 42 are minor landing centres. The sea of Kanyakumari District is generally rough through out the year. The fishermen of the District have therefore to face the rough sea throughout the year to eke out their livelihood. As regards the infrastructure facilities, the seventh respondent submits that one fishery harbour has been constructed and functioning at Chinnamuttom, near Kanyakumari Town under the Centrally Sponsored Scheme providing landing and berthing facilities for about 250 Mechanised fishing vessels. In the absence of any other fishing harbour facilities along the coast, nearly 1500 Mechanized fishing vessels belonging to the District Migrate to Kerala, Karnataka, Maharashtra and as far as Gujarat coasts to earn their livelihood. In that process the fishermen face a lot of problems leading to clashes, damages to boats, nets and other properties at the alien fishing centres. It has become a regular problem every year when they migrate to other states. Some of the boats also operate from Rameshwaram and Mandapam fishing centres. When the fishermen return to their native villages during off-season they used to anchor the boats in the open sea and due to heavy waves and currents, the mechanized fishing vessels are getting damaged. Catamarans and Vallams only are operating from Kanyakumari Coast as these could be hauled up on shore after every fishing trip.
3. The seventh respondent further submits that Kanyakumari District has a continental shelf of 8596 sq.km with 5 lakh Demersal and 2 lakh pelagic fishery resources. About 20% of the fishery resources lie within 10 fathoms of depth range, 50% of them available between 10-50 fathoms and the remaining 30% of fishery resources lies in the depth range of 50-100 fathoms. Wadge Bank lies near the southernmost part of the Indian penisula between Lat.7o and 8o North and Long. 76o and 78o East having an area of about 12505 sq.km. The seabed is generally hard with rocky or coral out crops. The area is known to be very rich in fishery resources like perches. Nemipterids, Rays, squid and cuttle fish, Carangids, Lizard fish, cat fish and ribbon fish. The major climatic feature of the Wadge Bank is the occurrence in conjunction with the Southwest and Northeast monsoon of rather strong winds causing moderate to high swells during the months from June to December. The tides are semi-diurnal nature and there is no major river systems opening into the sea near Wadge Bank. Due to its unique geographic position, the current pattern in Wadge Bank is a bit complex as is the characteristics of any cap. During southwest monsoon the current flows south wards with relatively high velocity. In Northeast monsoon the current system reverses thereby transporting the low salinity water from equatorial region northwards.
4. The seventh respondent further submits that the Government of Tamil Nadu formulated a scheme, after seeing the occupational hazards being faced by the fishermen of Thengaipattanam, to develop a fishery harbour at Thengaipattanam under the Centrally sponsored Scheme of Ministry of Agriculture, Government of India. Thengaipattanam fishing village is situated in Kanyakumari District about 43 km from Nagercoil, the District Headquarters. The proposed Thengaipattanam fishery harbour would benefit adjoining fishing villages viz., Vallavilai, Eraviputhanthurai, Chinnathurai, Thoothoor, Poothurai, Erayumanthurai, Muloothurai, Ramanthrai, Enayanchinnathurai and Thengaipattanam. Basically, the fishermen of Thengaipattanam are enterprising, adventurous, hardworking and these qualities could be evidenced by their migration to longer distances, undertaking longer fishing voyages lasting over 8 to 10 days at a stretch with their medium size boats. In view of the facts detailed above, the development of Thengaipattanam fishery harbour would help the fishermen of Vallavilai, Eraviputhanthurai, Chinnathurai, Thoothoor, Poothurai, Erayamanthurai, Mulloorthurai, Ramanthrai, Enayamchinnathurai and Thengaipattanam in landing their fish catches at the Centre. The seventh respondent further submits that consequent upon several representations received from the local fishermen of Thengaipattanam and subsequent direction from Ministry of Agriculture, Government of India, the Central Institute of Coastal Engineering for Fishery deputed a two member team, comprising an Engineer and Economist to Thengaipattanam to observe the ground realities and explore the possibilities for developing a minor fishery harbour at Thengaipattanam. The team prepared a pre-feasibility report after a field study and it recommended to undertake detailed engineering and economic investigations to ascertain the viability of the proposal of Thengaipattanam fishery harbour project. At present, about 1785 mechanized fishing vessels are operating from Kanyakumari District out of which about 300 mechanized fishing vessels have been accommodated at Chinnamuttom fishery harbour, 750 mechanized fishing vessels have been suggested in the proposed Thengaipattinam fishery harbour project and also it is reported that there are proposals to develop fishery harbours at Muttom and Rajakkamangalam in Kanyakumari District under Boot system by Department of Fisheries, Government of Tamil Nadu, which leaves about 250 to 300 mechanized fishing vessels requiring landing and berthing facilities in the District. Keeping this in view, the number of boats belonging to eight fishing villages within about 5 km from Colachel, the fishery harbour at colachel has been designed to accommodate 260 mechanized fishing vessels comprising 130 Nos. of 15 m vessels and 130 Nos. of 18 m vessels in consultation with the Department of Fisheries, Government of Tamil Nadu.
5. The seventh respondent further submits that understanding the difficulties of the fishermen, proposals were sent for the construction of a fishing harbour at Thengaipattanam in Kanyakumari District under centrally sponsored scheme shared as 50:50 between the State and the Government of India. Accordingly, administrative approval was accorded for Rs.40 Crores to construct a fishing harbour at Thengaipattanam vide Letter dated 25.09.2008. Based on the approval of the Government, the Tamil Nadu have sanctioned Rs.40 Crores vide letter dated 05.03.2009. Enviromental clearance was granted for this project by the Ministry of Environment and Forests Government of India vide letter dated 09.05.2006 of the Additional Director, Ministry of Environment and Forests, Government of India. The seventh respondent further submits that in addition, this harbour will provide direct employment to 1600 fishermen and indirect employment to about 5000 fishermen. A total of about 13000 fishermen directly and 10000 fishermen are expected to get benefits indirectly from this scheme. This fishing harbour has been designed for 750 Nos. of mechanized fishing vessels 160 Nos. of Traditional Crafts. The seventh respondent further submit that the writ petitioner who is the owner of the land in R.S.No.455 of Panikulam Village has filed W.P.No.32005 of 2007 with a prayer to quash the Land Acquisition Proceedings alleging that the project if implemented, would adversely affect the environment and ecological balance of the area. This Court has granted interim stay by an order dated 04.10.2007 and the same seems to have been extended. Due to the order of stay, the plan outlay for the project has increased from the initial estimate of Rs.40 Crores to Rs.97.40 Crores. The seventh respondent further submits that the petitioners have filed the present writ petition praying to quash the Land Acquisition Proceedings on the ground that physical possession of the land was not taken by the seventh respondent and hence, the Land Acquisition Proceedings shall be deemed to have lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013. The seventh respondent further submits that in connection with the prayer in M.P.No.1 of 2007 in W.P.No.32005 of 2007 counter affidavit and additional counter affidavit were already filed before this Court by this respondent.
6. The seventh respondent further submits that the prayer of the petitioner is not maintainable under law or on facts as the Land Acquisition Proceedings in respect of the land in R.S.No.445/1 of Panikulam Village was already concluded and the land was taken into physical possession on 04.10.2007 and handed over to the requisitioning body on 08.10.2007. As such, the contention of the petitioner that the Land Acquisition Proceedings shall be deemed to have lapsed under Section 24(2) of the Act is not maintainable under law. The seventh respondent further submits that the land in R.S.No.445/1 having an extent of 1.75.07 hectares was acquired along with the lands in R.S.No.467/2B having extent of 0.09.33 hectares, R.S.No.468/16B having extent of 0.26.09 hectare, R.S.No.468/17 having extent of 0.09.50 hectares for a public purpose that is for the construction of fishery harbour of Thengaipattinam under urgency clause by invoking the provision under Section 17 of the Land Acquisition Act, 1894 as per the Order of the Government in G.O.(Ms)No.3, Animal Husbandry, Dairying and Fisheries (FSI) Department, dated 04.01.2007. The notification under Section 4(1) of Land Acquisition Act, 1894 was approved by the Government in G.O.(Ms)No.115 Animal Husbandry, Dairying and Fisheries (FSI) Department, dated 19.07.2007. The notification was published in TNGG Extra Ordinary No.209, Part-II Section2, dated 19.07.2007 and in the dailies (i.e.,) Daily Thanthi (Tamil) and Business Standard, Chennai, dated 24.07.2007, local publicity was made on 30.07.2007 in the locality as laid down in the Act. The seventh respondent further submits that the declaration under Section 6 of the Act was approved by the Government in G.O.Ms.No.129, Animal Husbandry, Dairying and Fisheries (FSI) Department, dated 21.08.2007. The declaration was published in the TNGG Extra Ordinary No.246 Part II Section 2, dated 21.08.2007 and in the dailies i.e., Kumari Murasu, Business Standard on 28.08.2007. The declaration was published in the locality as laid down in the Act. The draft direction under Section 7 of the Act was approved by the Collector on 13.09.2007.
7. The seventh respondent further submits that notice under Section 9(1) and 10 of the Act, expressing the intention of the Government, to take possession of the land and requiring the landholders to stake their claim over the land was served to the landowners including the writ petitioners on 13.09.2007. The award enquiry under Section 11 of the Act was conducted in 28.09.2007 at the Village Office, Panikulam. The petitioners herein had not appeared for the enquiry. Since the petitioners had not turned out for enquiry, the compensation amount due to them was deposited into the Sub Court, Kuzhithurai on 10.10.2007 under Section 30 of the Act. The seventh respondent further submits that consequent on the passing of award and depositing of compensation amount in the Court, the landowners were directed to handover possession of the land to Government and as there was no positive response the land was taken into possession on 04.10.2007 and handed over to the requisitioning body on 08.10.2007. The seventh respondent further submits that the contention of the petitioner that physical possession of the land was not taken is not correct. The physical possession of the land was taken by the Land Acquisition Officer on 04.10.2007 and possession of the land was handed over to the requisitioning body on 08.10.2007. The petitioner has also admitted this in their petition dated 10.10.2007 addressed to the Land Acquisition Officer. The writ petitioner have raised this additional grounds by suppressing the facts to get advantage in their favour and to scuttle the Land Acquisition proceedings and the fishing harbour project. The seventh respondent further submits that taking into consideration of the public interest involved in this issue the Land Acquisition Proceedings were taken under urgent clause invoking the provision under Section 17 of the Land Acquisition Act, 1894. As per the urgency clause, the Land Acquisition Officer may take possession of any land needed for public purpose after 15 days from the date of publication of the notice mentioned under Section 9(1) of the Land Acquisition Act, 1894 and such land shall thereupon rest absolutely with the Government from all encumbrances as per Section 17(1) of the Land Acquisition Act, 1894. Before taking possession of any land under Sub Section (1) or Sub Section (2) of Section 17 of the Act. 80% of the compensation amount for such land as estimated by the Land Acquisition Officer may be paid to the interested persons or as provided under Section 17(3A) of the Act or deposited under Section 31(2) of the Act and this amount, so paid or deposited may be taken into account for determining the amount of compensation finally as provided under Section 17(3B) of the Act.
8. The seventh respondent further submits that the Land Acquisition Proceedings in this case was completed duly observing the due procedures without variation and physical possession of the land was taken on 04.10.2007. The possession of the land was also handed over to the Requisitioning Department on 08.10.2007. In the above stated position, the contention of the petitioner that physical possession was not taken and that compensation has not been paid to them with the meaning of Section 24(2) of the 2013 Act is not maintainable under law. The compensation amount due to the petitioners was deposited in sub Court collectively only due to the reason that the petitioners had not enunciated their individual share through any valid documents. The deposit of compensation amount collectively in the Court is legally tenable as per Section 30 of the Land Acquisition Act, 1894. The seventh respondent further submits that the petitioners in their self interest are putting this multi crore project under ransom through judicial proceedings raising unsustainable reasons against public interest. Hence, the seventh respondent entreats the Court to dismiss the above writ petition.
9. The sixth respondent has filed a counter affidavit and resisted the above writ petition. The sixth respondent submits that the Notification as per Land Acquisition Act, 1894 are for publication only and published in the Government Gazette, dailies and locality and there is no point of service to landowner as per the Act. As the land is declared acquisition under urgency clause of Land Acquisition Act, 5A enquiry is unwanted as per the provisions of the Act. The purpose is for public interest to form fishing harbour and this is specified and the notice has also clarity and validity. The averments are vague and exaggerated and the acquisition serves the public by fishing, commerce and trade and transport etc., The sixth respondent further submits that all the other landowners accepted and received the compensation amount agreed under Private Negotiations Act and since these petitioners did not receive the compensation, their due amounts were deposited and kept in the Sub Court, Kuzhithurai. The apt remedy is either to receive the amount deposited in the Court and release the land or to get the compensation that would be ordered by the Court as reference under Section 18 of the Land Acquisition Act, would definitely be made to the Sub Court, Kuzhithurai as per Rules. The sixth respondent further submits that the petitioners are hailing from the so called "Pioneer family" which is one of the wealthiest families of Kanyakumari District possessing huge area of lands and indulging in many trades and commerce and there is no noteworthy loss due to this proposed Land Acquisition when compared to their enormous land and wealth. Generally sea shores are full of huts, cottages and houses but this proposed acquisition area is free from such structures and hence, there is no damage or loss to anybody. Hence, the sixth respondent entreats the Court to dismiss the above writ petition.
10. The highly competent counsel Mr.D.Sadhasivam appearing for the petitioners submits that the subject land to an extent of 5 acres belongs to the petitioners, and this is situated at Panikulam Village in Vilavancode Taluk in Kanyakumari District. The said property had been partitioned. After partition, the petitioners have been remitting tax to the statutory authorities. The petitioners have attended meeting which has been conducted by the District Collector, Kanyakumari on 06.06.2006 regarding compensation for proposed acquisition of lands. The highly competent counsel further submits that the seventh respondent herein had issued impugned notice and asked the petitioners to appear before them and show proof regarding ownership and quantum of compensation. Further, the respondent had not implemented the said scheme, the respondents are having alternate sites for approaching the road for the said construction of Thengaipattanam fishing harbour. Supporting his case, the highly competent counsel has cited the following judgments:-
(i) P.Jayadevan v. The State & Others reported in 2014-2.L.W.785 "Land Acquisition Act, Section 48 / Reconveyance, rejection, effect, Acquisition Proceedings, when lapses.
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Centre Act 30 of 2013) / Acquisition Proceedings, when lapses.
Compensation amount in respect of award was not deposited to credit of the then jurisdictional Court viz., Sub Court, Krishnagiri, request for reconveyance rejected.
Appellant and his brother have refused to receive the award - In the jurisdictional Court, third respondent had not deposited the amount within the stipulated time.
Held: 2014-2-L.W. 430 (S.C) Pune Municipal Corporation Case, is applicable - Through award was passed five years or more prior to the commencement of present Central Act 30 of 2013, third respondent has not chosen to withdraw the compensation amount deposited by him to the credit of the said amount, and deposit the same on the file of the jurisdictional Sub Court on time - Land Acquisition Proceedings treated to be deemed to have lapsed."
(ii) Banda Development Authority v. Moti Lal Agarwal reported in (2011) 5 Supreme Court Cases 394 "Property Law - Possession - Modes of taking - Discussed - On facts held, action of State authorities concerned of going to the spot and preparing panchnama showing delivery of possession was sufficient for recording a finding that actual possession of the entire acquired land had been taken and handed over to BDA - Civil Procedure Code, 1908 - Ord.21 Rr.35, 36, 95 and 96 - Land Acquisition Act, 1894, Ss.16, 17 and 11-A."
11. The highly competent counsel appearing for the petitioner further submits that the Old Act has been repealed by Section 114 of the present Act. The petitioner's lands have been acquired under the repealed Act. The physical possession of the land is still with the petitioners and as such, the petitioners are entitled to receive remedy under Section 4 of the New Act. The compensation amount has not been paid to the petitioners and as such, the acquisition proceedings have become lapsed on two grounds, viz., (i) compensation amount has not been paid and (ii) possession was not taken. Hence, the highly competent counsel entreats the Court to allow the above writ petition.
12. The highly competent Additional Government Pleader appearing for the respondents 2 to 4 and 6 to 8 submits that the Director of Fisheries has initiated a project proposal to construct a fishing harbour at Thengaipattanam in Kanyakumari District. The same was accepted by the Government and G.O. was issued. Therefore, the subject land had been acquired after invoking urgency clause. 5 landowners have not given consent. The highly competent Additional Government Pleader further submits that the Land Acquisition Officer had strictly adhered to the Land Acquisition Proceedings under the Old Act. The landowners have received notices and some of them did not appear. Further, some of them had not produced title deeds regarding their respective property. After acquiring the said land, the entire compensation amount has been deposited into the Sub Court, Kuzhithurai by way of cheque. The possession also had been taken by the Land Acquisition Officer and it was handed over to the Director of Fisheries. As such, the petitioner's request under Section 24(2) of the Act cannot be considered. The highly competent Additional Government Pleader further submits that the subject land is absolutely necessary in order to form approach road to the proposed fishing harbour. Hence, the highly competent Additional Government Pleader entreats the Court to dismiss the above writ petition.
13. The highly competent Central Government Standing Counsel counsel Mr.B.Sekar appearing for the first respondent / Ministry of Environment and Forest, submits that the subject land had been acquired for the formation of Thengaipattanam Fishing Harbour for the welfare of general public, especially, fishermen. Therefore, the first respondent has approved the said scheme after scrutinizing the entire records.
14. The highly competent Special Government Pleader Mr.M.K.Subramanian appearing for the fifth respondent submits that the petitioners land and the forest land besides Government lands were acquired by the seventh respondent for the purpose of forming of Thengaipattanam Fishing Harbour in Kanyakumari District. Further, the petitioners land are required for formation of approach road, since there is no alternative site except the petitioners lands. Therefore, the highly competent Special Government Pleader entreats the Court to dismiss the above writ petition.
15. On considering the facts and circumstances of the case and argumens advanced by the highly competent counsels on all sides and on perusing the typed-set of papers, this Court is of the view that the Animal Husbandry and Animal Husbandry, Dairying and Fisheries (FSI) Department had issued a Government Order for acquiring the lands including the petitioners lands in the year 2005. Following the said G.O., the Land Acquisition Officer had observed all legal formalities like publishing notification in Government Gazette and publication in the press media and then acquired their properties on 13.09.2007 and compensation had been deposited into the Sub Court, Kuzithurai, dated 10.10.2007. Therefore, the petitioners are not entitled to receive any relief under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013, in the given set of facts and current situation. Further, the said property had been acquired for a public purpose i.e., formation of a fishing harbour in Kanyakumari District which is of paramount importance. Hence, the above writ petition is dismissed. There is no order as to costs. Consequently, connected miscellaneous petitions are closed.
01/09/2015
Index : Yes.
Internet : Yes.
r n s
To
1.The Secretary to Government,
Government of India,
Ministry of Environment and Forest,
New Delhi.
2.The Secretary to Government,
Government of Tamil Nadu,
Revenue Department,
Fort St.George, Chennai - 600 009.
3.The Secretary to Government,
Government of Tamil Nadu,
Fisheries Department,
Fort St.George, Chennai - 600 009.
4.The Secretary to Government,
Government of Tamil Nadu,
Backward Welfare Department,
Fort St.George, Chennai - 600 009.
5.The Secretary to Government,
Government of Tamil Nadu,
Environment and Forest Department,
Fort St.George, Chennai - 600 009.
6.The District Collector,
Kanyakumari District
at Nagercoil.
7.The Revenue Divisional Officer,
(Land Acquisition Officer),
Padmanabhapuram,
Kanyakumari District.
8.The Assistant Director of Fisheries,
Vadaserry, Nagercoil,
Kanyakumari District.
C.S.KARNAN, J.
r n s
Pre Delivery Order made in
W.P.No.32005 of 2007 &
M.P.Nos.1 of 2007 & 1 of 2014
01/09/2015