Madras High Court
G.Dhanalakshmi vs The Special District Revenue Officer on 23 December, 2011
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/12/2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.7007 of 2010 and W.P.(MD)Nos.7251 to 7258 of 2010 and Contempt Petition (MD)Nos.126 to 133 of 2011 and M.P.(MD)Nos.2,3,2,2,2,2,2,2,2,2 and 3 of 2010 G.Dhanalakshmi .. Petitioner in WP(MD)No.7007 /2010 N.Dhanalakshmi Ammal .. Petitioner in WP(MD)No.7251 /2010 & Cont.P.(MD)No.126 of 2011 S.H.Mehaboob Basha .. Petitioner in WP(MD)No.7252 /2010 & Cont.P.(MD)No.127 of 2011 D.John Basha .. Petitioner in WP(MD)No.7253 /2010 & Cont.P(MD)No.128 of 2011 S.Madhan .. Petitioner in WP(MD)No.7254 /2010 & Cont.P(MD)No.129 of 2011 G.Janaki Ammal .. Petitioner in WP(MD)No.7255 /2010 & Cont.P(MD)No.130 of 2011 R.M.Periyannan .. Petitioner in WP(MD)No.7256 /2010 & Cont.P(MD)No.131 of 2011 J.Vimala .. Petitioner in WP(MD)No.7257 /2010 & Cont.P(MD)No.132 of 2011 S.Rajendran .. Petitioner in WP(MD)No.7258 /2010 & Cont.P(MD)No.133 of 2011 Vs. 1.The Special District Revenue Officer, Land Acquisition National Highways, 34, Sait Colony, Gandhi Nagar, Ponnagar, Tiruchirappalli-1. 2.The Project Director, National Highways Authority of India, Tanjavur. 3.The District Collector, Collectorate, Tiruchirappalli... Respondents in WP(MD)Nos.7007, 7251 to 7258/ 2010 G.Athipathi, The Project Director, National Highways Authority of India, Ministry of Road Transport and Highways, Office of the Project Director, Project Implementation Unit, No.54, First Floor, Natarajapuram North Colony, Thanjavur-613 004. .. Respondent in Cont.P(MD)Nos.126 to 133 of 2011 W.P.(MD)Nos.7007, 7251 to 7258 of 2010 have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the impugned notification in Na.Ka.E/749/2008, dated 20.01.2010 and consequently the notification in Na.Ka.No.E/749/2008, dated 03.08.2009 and quash the same insofar as the petitioners are concerned. Contempt Petition (MD)Nos.126 to 133 of 2011 have been filed under Section 11 of the Contempt of Court Act seeking to punish the respondent for contempt of court in making disobedience of the order of interim stay of dispossession passed on 3.6.2010 in M.P.Nos.2 of 2010 in WP(MD)Nos.7251 to 7258 of 2010. !For Petitioners ... Mr.K.M.Venugopal in WP(MD).7007 of 2010 and in contempt petitions Mr.S.Srimathi for Mr.S.M.S.Johnny Basha in W.P.(MD)Nos.7251 to 7258 of 2010 ^For Respondents ... Mr.M.Govindan, Spl.G.P. for R1 and R-3 in all writ petitions Mr.A.Rajendran for R-2 in all W.Ps. Mr.S.S.Sundar for National Highways Authority Mr.Arul Vadivel Sekar, Standing Counsel for National Highways Authority in all contempt petitions - - - - :COMMON ORDER
In all these writ petitions, the challenge is to the acquisition of lands of petitioners by the National Highways Authorities of India.
2.The lands were acquired for the purpose of laying four lane traffic between Thanjavur-Trichy National Highways No.67 from Km.116/500 to 136/500 and for maintaining and operating the Highways. The lands were situated in various villages in Tiruchirappalli Taluk. The villages are known as Valavandankottai, Ariyamangalam, Ukkadai Ariyamangalam, Thuvakudi, Agaram, Ellakudi and Koothupar. A publication was made in a Tamil daily newspaper "Thina Thanthi" , dated 11.08.2009 notifying various survey numbers, the purpose of acquisition, the nature of ownership, extent of land and classification of land. The notification was issued in terms of Section 3-A of the National Highways Act, 1956. It was informed that any person, who has any objection, can raise objection either directly or through counsel and support their objections. None of the petitioners have raised any objection.
3.All these petitioners who have lands in Valavandan village have purchased the properties on different dates. The number of writ petition, date of purchase of each petitioner and the date of sale deed are as follows:
Sl.No. W.P.Number Date of purchase Dale of sale
deed registered
1 W.P(MD)7007/2010 26.05.2005 26.05.2005
(G.Dhanalakshmi)
2 W.P.(MD).7251/2010 27.06.1979 29.07.1979
N.Dhanalakshmi Ammal
3 W.P.(MD).7252 /2010 24.08.2000 29.08.2000
S.H.Mehaboob Basha
4 W.P(MD).7253 /2010 02.06.1997 03.06.1997
D.John Basha
5 WP(MD).7254 /2010 05.11.2003, 05.11.2003,
S.Madhan 12.11.2003 12.11.2003
6 WP(MD).7255 /2010 17.04.1979 26.04.1979
G.Janaki Ammal
7 WP(MD).7256 /2010 15.07.1979 19.07.1979
R.M.Periyannan
8 WP(MD).7257 /2010 12.07.2001 16.07.2001
J.Vimala
9 WP(MD).7258 /2010 05.07.2001 09.07.2001
S.Rajendran
4.It is their claim that subsequent to the purchase of properties, they have got patta in their names given by the Zonal Deputy Tahsildar, Tiruchirappalli Town. The pattas obtained by them were admittedly prior to the notification issued under Section 3-A of the National Highways Act, dated 3.8.2009. Thereafter, the respondents have published the notification under Sections 3-D and 3-G and directed the petitioners for an enquiry. Long after the notification issued under Sections 3D and 3G, the petitioner in W.P.(MD)No.7007 of 2010 sent a representation on 23.3.2010 and the other petitioners on 25.3.2010. In their representation, it was informed by them that they are the owner of the properties in respective survey numbers. It has become house plots coming under lay out called Mangapuram Nagar. It was purchased through sale deeds registered at the Sub Registrar Office at Thiruverumbur. Insofar as the notification issued on 20.1.2010 under Sections 3-G and 3-G, names of 21 persons were mentioned as land owners. But the petitioners' names were not mentioned. Therefore, they wanted to clarify whether they intend to take over their properties. The other representations are identical. Since their representations were not received any answer, they filed writ petitions, seeking to challenge the notification issued under Section 3D and 3G of the National Highways Act as well as the previous notification under Section 3A dated 3.9.2009 and seeks to set aside the same.
5.The petitioner in W.P.(MD)No.7007 of 2010 fairly admitted that at the time of notification in the newspaper, she could not approach the respondents to raise any objection as her husband was ill and was admitted in the Cancer Hospital, Chennai and confined for three months. After return to Trichy, she gave a written representation. Section 3-A notification will have to mention the names of land owners which has not been done. In the case of the other petitioners, except the possession of patta, no other excuse for not appearing pursuant to Section 3-A was mentioned.
6.It must be noted that in the notification issued under Section 3-A, the S.No.446/2E is clearly mentioned "private land classified as Punja". Except one petitioner, the others name were not found. The petitioners' grievance was that their names were not found in the notification. It had only mentioned the areas and extent, but not the names of the owners. Hence they wanted the notification to be set aside.
7.In the first writ petition, notice was ordered on 27.5.2010. This Court while ordering notice to the respondents, without admitting the writ petition, had granted stay of dispossession. In W.P.(MD)Nos.7251 to 7258 of 2010, they were all admitted on 3.6.2010. Pending the writ petitions, stay of dispossession was granted. Aggrieved by the interim order, the respondent Special District Revenue Officer and Land Acquisition (National Highways) has filed M.P.(MD)No.3 of 2010 in W.P.(MD)No.7007 of 2010. Similarly, a vacate stay application in M.P.(MD)No.3 of 2010 in W.P.(MD)No.7251 of 2010 was also filed.
8.Aggrieved by the conduct of the respondents, the petitioners have filed eight contempt petitions being Contempt Petition (MD)Nos.126 to 133 of 2011 to punish the respondents for having disobedience of the interim order passed by this court and going ahead with the construction activities. In those contempt petitions, learned Additional Government Pleader was directed to take notice. The petitioners were also permitted to take private notice. Subsequently, on 11.3.2011, this court directed the Standing Counsel for National Highways to get instructions from the respondents. Again, when contempt petitions came up on 20.12.2011, this court directed main writ petitions themselves to be posted for hearing in view of the fact that the contempt arose out of the interim orders passed by this Court.
9.The respondents apart from vacate stay applications in two matters, in all writ petitions have filed counter affidavits. The stand of the respondent in W.P.(MD)No.7007 of 2010 was that lands were acquired after observing all statutory formalities. It was published in the Government of India gazette on 03.12.2009. From that day onwards, the lands vested with the Central Government free from all encumbrances. The petitioners who claim to have got pattas have not filed any title over the lands in question. The revenue accounts, i.e. adungal and chitta for the lands in S.No.446/2E has not been mentioned as they were held by the petitioner or her vendor. The substance of the notification was published in two local dailies (i.e., the New India Express in English and Thina Thandhi in Tamil) on 11.08.2009 inviting objections, but no objections were received within the time prescribed. The substance indicated the schedule of lands. The Act do not prescribe mentioning the name of the land owner at the preliminary stage under Section 3A(1). The notification under Section 3D(1) was published on 03.12.2009 as noted already. It was the enquiry was to be conducted in the Village Administrative Officer's office at Valavanthankottai. It was also published in the very same two dailies on 23.1.2010. The writ petitioner has not chosen to appear to put forth her case. Her name was not included in the revenue accounts. Hence her name did not find place in the notification under Section 3D(1). But she can always appear before the enquiry officer even as an interested person. Subsequently, as no representation was sent, the Award came to be passed after observing all formalities. The compensation amount has also been fixed in respect of the ownership to an extent of 3711 sq.m. out of 6559 sq.m. in S.No.446/2E. The amounts were ordered to be kept under category withheld, as noone turned up for enquiry under Section 3G(3). Even now the petitioner can prove her title and claim compensation.
10.Similar was the stand in respect of the other writ petitions, wherein the respondents have stated that after following the procedures, the Award was passed and the compensation had been quantified. Since their names were not recorded in the revenue records, the question of their names being found in the notification will not arise.
11.In the affidavit filed in support of the miscellaneous petitions, the Special District Revenue Officer had referred to the compensation amount award to them, which reads as follows:
Sl.No. W.P.No. Compensation awarded Amount payable after I.T deduction Cheque No. Date 1 7252/10 Rs.8,48,013/-
Rs.7,63,212/-
652755 dt: 29.4.10 2 7253/10 Rs.14,89,967/-
---
Withheld 3 7254/10 Rs.14,89,967/-
---
Withheld 4 7255/10 Rs.1,79,069/-
Rs.1,61,162/-
652764 dt.29.4.10 5 7256/10 Rs.1,26,874/-
Rs.1,14,187/-
652753 dt.29.4.10 6 7257/10 Rs.1,79,069/-
Rs.1,61,162/-
652757 dt.29.4.10 7 7258/10 Rs.77,891/-
Rs.77,891/-
652756 dt.29.4.10
12.It was also stated that except the petitioner in W.P.(MD)No.7007 of 2010, all other writ petitioners have appeared in the enquiry . In respect of the petitioner in W.P.(MD)No.7253 of 2010 (D.John Basha) and W.P.(MD)No.7254 of 2010 (S.Madhan), the amounts have been withheld as they failed to prove their title over the land.
13.Ms.Srimathi, learned counsel appearing for the petitioners contended that the notification under Section 3A was liable to be quashed since the names of the owners were not mentioned. She also placed reliance upon a judgment of the Supreme Court in Competent Authority v. Barangore Jute Factory reported in (2005) 13 SCC 477 and referred to the following passage found in paragraph 5 which reads as follows:
"5........ So far as the question whether the impugned notification meets the requirement of Section 3-A(1) of the Act regarding giving brief description of land is concerned, we have already shown that even though plot numbers of lands in respect of each mouza are given, different pieces of land are acquired either as whole or in part. Wherever the acquisition is of a portion of a bigger piece of land, there is no description as to which portion was being acquired. Unless it is known as to which portion was to be acquired, the petitioners would be unable to understand the impact of acquisition or to raise any objection about user of the acquired land for the purposes specified under the Act or to make a claim for compensation. It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning. In our view, the impugned notification fails to meet the statutory mandate. It is vague. The least that is required in such cases is that the acquisition notification should let the person whose land is sought to be acquired know what he is going to lose. The impugned notification in this case is, therefore, not in accordance with the law.
But, in the same judgment, in paragraph 7, it was observed as follows:
7.The availability of a plan would have made all the difference. If there is a plan, the area under acquisition becomes identifiable immediately. The question whether the impugned notification meets the requirement of brief description of land under Section 3-A(2) goes to the root of the matter. The High Court rightly observed: ". It is just not possible to proceed to determine the necessity of acquisition of a particular plot of land without preparation of a proper plan." The appendix to the impugned notification shows that in many cases small parts of larger chunks of land have been notified for acquisition.
This is not possible without preparing a plan. But where is the plan? The notification in question makes no reference to any plan. Our attention was drawn to averments in pleadings by the writ petitioners and replies thereto of the acquiring authority. The writ petitioners have pleaded that there was no plan. Replies are vague and by way of rolled-up answers. There is no specific reply. It is obvious that there was no plan and, therefore, none was referred to in the pleadings nor anything was produced before the Court at the hearing. Learned counsel for the competent authority tried to submit before us that there was a plan at the time of issue of the notification and the writ petitioners ought to have inspected it, if they so desired. He further submitted that the plan was produced before the High Court. We find that both these submissions are not sustainable as they are not correct. A reference to the impugned notification shows that there is no mention of any plan. Without this how can anybody know that there was a plan which could be inspected and inspected where? We are inclined to accept that there was no plan accompanying the impugned notification. During the course of hearing we were shown a plan which we are unable to link with the impugned notification. This was a 1996 PWD plan. PWD is a department of the State Government. The impugned notification is by the Central Government. NHAI is established under a Central Act. The competent authority under Section 3 of the Act is appointed by the Central Government. Therefore, this State Government plan of 1996 (the impugned notification is of 1998) is of no assistance. The impugned judgment of the High Court emphasises the need for a plan. It is clear from the judgment of the High Court that no plan was produced before it. The absence of any reference to a plan in the impugned notification and in fact non-availability of any plan linked to the notification, fortifies the argument that the description of the land under acquisition in the impugned notification fails to meet the legal requirement of a brief description of the land which renders the notification invalid.
14.It was also stated that the petitioners were deprived of an opportunity of filing objections. Under the Land Acquisition Act, 1894, the description of the land includes the name of the owner or interested party.
15.Countering the argument of the learned counsel for the petitioner, Mr.S.S.Sundar, learned counsel appearing for the National Highways Authorities stated that the entire procedure has been followed as contemplated under law. He also referred to the common typed set filed by the petitioners to prove that the information received from the office of the Empowering Officer-cum-Special District Revenue Officer, Land Acquisition (Highways) in Perambalur, Trichy, Pudukkottai, Thanjavur Districts showed that except one petitioner's name, all other names have been mentioned. Further, except the petitioner in W.P(MD)No.7007 of 2010, the other petitioners have appeared for the enquiry. Therefore, they cannot stake the same defence.
16.He referred to a judgment of the division bench of this court presided by A.P.Shah, C.J., (as he then was) in General Manager (Technical) and Project Director, National Highways Authority of India, Chennai Vs. Ms.Sridevi reported in (2007) 1 MLJ 129. In that case, this court after referring to the very same case in Barangore Jute Factory (cited supra) held in paragraph 10 as follows:
"10.In the case in hand, the impugned notification specifically refers the land plan and therefore, the argument of the learned counsel for the petitioners that there was non-compliance of Section 3-A(2) of the Act cannot be accepted."
17.He also referred to a judgment of the Supreme Court in Ramniklal N.Bhutta and another Vs. State of Maharashtra and others reported in (1997) 1 SCC 134 for contending that in these matters, larger public interest should be kept in mind and in paragraph 10, it was observed as follows:
"10.....Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis--vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non- compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings."
18.Therefore, he submitted that even the first petitioner did not appear in the enquiry. The petitioner's excuse that she was in Chennai at the relevant time will not vitiate the proceedings initiated by the respondents. In respect of others, even the objection raised by the first writ petitioner is not available in the light of the above judgments. Hence all the writ petitions are liable to be dismissed.
19.The contention raised by the Standing Counsel for NHAI is well founded. The petitioners cannot make any objection with reference to the notification under Section 3-A as wide publicity has been given. Though the petitioners have claimed that they got pattas, the respondents have proceeded only on the basis of records received from the Revenue department. Except one petitioner, the others names were not found there. The fact is that the other petitioners have appeared for enquiry and they were aware of the proceedings. Secondly, in this case, as mentioned in the advertisement, the plan was kept in the office of the Special District Revenue Officer as found in the notification under Section 3-A which was published in the newspaper. Therefore, this court do not find any case made out by the petitioners for interfering with the notification under Section 3-A or the final award passed. The petitioners have not made out any case to entertain the writ petition. Ultimately, as found in the judgment in Ramniklal N.Bhutta's case (cited supra), if at all, the petitioners can only seek for any higher compensation. They have not already made any such claim. Section 3-G(5) gives them liberty to file an application for arbitration before the arbitrator to be appointed by the Central Government. Therefore, only with a liberty for the petitioners to file an arbitration application, this court is not inclined to grant any relief. If the petitioners file applications for arbitration within four weeks from the date of receipt of copy of this order, the respondents shall thereafter refer the same for appropriate arbitration with reference to enhancement of compensation. In all other respects, all the writ petitions will stand dismissed with directions as noted above. Consequently connected miscellaneous petitions stand closed. No costs.
20.The contempt petitions arose out of the interim order. In the light of the above facts, this court do not find any case made out to issue any contempt. Hence all contempt petitions will stand dismissed. No costs.
vvk To
1.The Special District Revenue Officer, Land Acquisition National Highways, 34, Sait Colony, Gandhi Nagar, Ponnagar, Tiruchirappalli-1.
2.The Project Director, National Highways Authority of India, Tanjavur.
3.The District Collector, Collectorate, Tiruchirappalli.