Madras High Court
Aslam Basha vs The District Collector on 10 November, 2021
W.P.No.7420 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.11.2021
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P. No. 7420 of 2021
1. Aslam Basha
2. S. Mohamed Ziyaulla Sheriff .... Petitioners
Vs
1. The District Collector,
Tiruvannamalai,
Tiruvannamalai District.
2. The Chief Administrative Officer,
Construction Division,
Southern Railway,
Egmore, Chennai – 600 008.
3. The Tahsildar,
Office of the Tahsildar,
Polur – 606 803,
Tiruvannamalai District. .... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying to issue a Writ of Certiorarified Mandamus, calling for the
records from the first respondent, quash the order of the first respondent
dated 29.01.2021 and consequently direct the first respondent to re-fix
the value of the land in survey Nos.868/1, 868/2, 869/1A, 869/2,
847A/5A in all measuring 73 cents (32000 sq.ft) in term of the Right to
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W.P.No.7420 of 2021
Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 and pay the same to the
petitioners along with interest at the rate of 9% per annum from the date
when the land was taken possession.
For Petitioners : Mr.Balan Haridas
For R1 & R3 : Mr.A. Selvendran
Government Advocate
For R2 : Mr.P.T.Ramkumar,
Standing Counsel
ORDER
The Writ Petition has been filed for issuance of Writ of
Certiorarified Mandamus, calling for the records from the first
respondent, quash the order of the first respondent dated 29.01.2021 and
consequently direct the first respondent to re-fix the value of the land in
survey Nos.868/1, 868/2, 869/1A, 869/2, 847A/5A in all measuring 73
cents (32000 sq.ft) under the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 and pay the same to the petitioners along with interest at the rate of
9% per annum from the date when the land was taken possession.
2. The case of the petitioners is that they owned the land in survey
No. 868/1 to an extent of 0.06.5 hectare, in survey No.868/2 to an extent
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W.P.No.7420 of 2021
of 0.01.0 ares, in survey No.869/1A to an extent of 0.16.0 hectare, in
survey No.869/2 to an extent of 0.02.5 hectare, in survey No.847A/5A to
an extent of 0.03.5 hectare and in survey No. 847A/5A to an extent of
0.29.5 hectare situated at Polur Town, Tiruvannamalai District. It was
acquired in the year 2008 for conversion of Meter Gauge Railway Line to
Broad Gauge from Katpadi to Villupuram. The acquisition process was
completed in the year 2009. However, the land value was not fixed till
the year 2011. In the guise of private negotiation, the second respondent
fixed the value of the land at Rs.120/- per sq.ft and forced the petitioner
to get the compensation. At that point of time, the guideline value was at
Rs.362/- per sq.ft. Therefore, the petitioners made a representation on
04.01.2012, to re-fix the value of the property on the basis of the
Government guideline value, before the first respondent. It was not
considered and the petitioner filed a writ petition before this Court in
W.P.No.11920 of 2012 and this Court, by an order dated 27.04.2012,
directed the respondents to pass orders on their representation.
3. By an order dated 11.07.2012, the third respondent rejected
the request made by the petitioner and aggrieved by the same, the
petitioners filed a writ petition before this Court in W.P.No. 28093 of
2012. This Court, by an order dated 02.06.2020, set aside the order
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W.P.No.7420 of 2021
passed by the third respondent herein and directed the first respondent to
consider the petitioners representation for re-fixation of the value of the
land and pass fresh orders within the period of four weeks. Again the
first respondent rejected the representation submitted by the petitioners
by an impugned order dated 29.01.2021.
4. The learned counsel for the petitioners would submit that the
subject land acquired by the respondents is situated near the Railway
Station, Bus Stand and other Commercial and Residential area and its
guideline value is at Rs.362/- per sq.ft. Even though the petitioners had
private negotiation with the respondents, they are entitled to receive the
compensation by its guideline value. The petitioners were compelled to
receive the compensation at Rs. 120/- per sq.ft. and as such, this Court
specifically considered the representation of re-fixation on the value of the
property. However, the first respondent did not consider the direction
issued by this Court and had mechanically rejected the same.
5. The subject land was not under cultivation of the petitioner
from the year 2008. Therefore, there is an agricultural income loss for
the petitioner from the year 2008 and the compensation was fixed only on
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W.P.No.7420 of 2021
16.02.2012. The first respondent has relied upon G.O.Ms.No.103,
Revenue, dated 28.02.2011 to decline the request of the petitioners.
Once the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 came into force,
there is no scope for any private negotiation and consequently the said
G.O. has no role to play. In support of his contention, he relied upon the
Judgment reported in 2011 (10) SCC 404 in the case of State of
Hariyana Vs. Mukesh Kumar and Ors, the relevant portion is extracted
here under :
“33. The right to property is now considered to be
not only a constitutional or statutory right but also a
human right. Human rights have already been considered
in the realm of individual rights such as the right to health,
right to livelihood, right to shelter and employment, etc.
but now human rights are gaining a multifaceted
dimension. Right to property is also considered very much
a part of the new dimension. Therefore, even the claim of
adverse possession has to be read in that context.”
6. He is also relied upon the Judgment reported in 2020 SCC
online SC 950 in the case of B.K.Ravichandra and Ors Vs. Union of
India and Ors, the relevant portion is extracted as follows :
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W.P.No.7420 of 2021
“29. It is, therefore, no longer open to the state : in
any of its forms (executive, state agencies, or legislature)
to claim that the law – or the constitution can be ignored,
or complied at its convenience. The decisions of this
Court, and the history of the right to property show that
though its pre-eminence as a fundamental right has been
undermined, nevertheless, the essence of the rule of law
protects it. The evolving jurisprudence of this Court also
underlines that it is a valuable right ensuring guaranteed
freedoms and economic liberty. The phrasing of Article
300-A is determinative and its resemblance with Articles
21 and 265 cannot be overlooked they in effect, are a
guarantee of the supremacy of the rule of law, no less. To
permit the state : whether the Union or any State
Government to assert that it has an indefinite or
overriding right to continue occupying one's property
(bereft of lawful sanction)- whatever b e the pretext, is no
less than condoning lawlessness. The court's role is to act
as the guarantor and jealous protector of the people's
liberties : be they assured through the freedoms, and the
right to equality and religion or cultural rights under Part
III, or the right against deprivation, in any form, through
any process other than law. Any condonation by the court
is a validation of such unlawful executive behavior which
it then can justify its conduct on the anvil of some loftier
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W.P.No.7420 of 2021
purpose, at any future time-abtiv described as a “loaded
weapon ready for the hand of any authority that can bring
forward a plausible claim of an urgent need.”
7. The third respondent filed a counter stating that the subject
lands have been acquired under private negotiation and the value of the
lands have been fixed at the guideline submitted by the Sub Registrar,
Polur. In fact, the meeting effected by the first respondent with the land
owners and the committee consisting of Secretary and members on
16.12.2011 and the value of the land has been fixed at Rs.120/- by the
Committee on 16.12.2011. It has been duly accepted by the land owner
and signed in the valuation register. Thereafter, the compensation
amount was disbursed to the petitioner on 16.02.2012.
8. That apart, sale deed had been executed by the petitioners on
16.02.2012 by accepting the value of the land at Rs.120/- per sq.ft and
there is no question by forcing them to receive the said amount. The
New Act came into force on 01.01.2014, whereas, the compensation was
paid as early as on 16.02.2012, i.e., the date of execution of sale deed.
Therefore, the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013, will not apply to
the present re-fixation of compensation as requested by the petitioner.
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W.P.No.7420 of 2021
9. The learned counsel for the second respondent submitted that
by a letter dated 17.12.2011, the petitioner accepted the rate fixed during
private negotiation conducted on 16.12.2011. However, they claimed
compensation for non-cultivation for a period of four years. After
accepting the rate fixed during Committee meeting, the petitioners have
duly executed the sale deed in favour of the third respondent on
16.02.2012, on receipt of the sale consideration at Rs.38,09,040.
Therefore, the entire transaction was done under the private negotiation
and as such, they cannot claim higher compensation by re-fixing the
value for the subject property. This Court, by an order dated
02.06.2020, directed the first respondent to consider their representation
for re-fixing the value of the land at Rs.362/- per sq.ft. The petitioners
duly attended the Committee meeting on 16.12.2011 and accepted the
value fixed by the Committee in the presence of the first respondent
herein. They also duly signed in the valuation register by accepting the
value fixed for the subject property.
10. Heard, Mr.Balan Haridas, learned counsel appearing for
the petitioner, Mr.A. Selvendran, learned Government Advocate
appearing for the respondents 1 & 3 and Mr.P.T.Ramkumar, learned
Standing Counsel appearing for the second respondent.
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W.P.No.7420 of 2021
11. The land belonged to the petitioners were acquired in the year
2008 for the purpose of conversion of Meter Gauge Railway Line to
Broad Gauge from Katpadi to Villupuram. In the light of private
negotiation, the respondent fixed the value at Rs.120/- per sq.ft. for the
subject land. The value of the land has been fixed as per the guideline
value fixed by the Sub-Registrar, Polur, during the meeting convened by
the first respondent with the petitioners. The meeting of the Committee
consisting of Secretary and members and was convened on 16.12.2011 in
the presence of the first respondent herein. The petitioners participated
in the Committee meeting and accepted the value fixed by the Committee
and signed in the valuation register. Accordingly, they were paid
compensation at Rs.120/- per sq.ft. on 16.02.2012. On that date, the
petitioners have executed the sale deed in favour of the third respondent
by a sale deed dated 16.02.2012.
12. Admittedly, the New Act came into force only on 01.01.2014,
whereas the entire land acquisition proceedings, the subject land was
acquired in the year 2008 and the compensation for the said land was
disbursed as early as on 16.02.2012 i.e., on the date of execution of sale
deed. Therefore, the New Act is not applicable to the petitioners to re-
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W.P.No.7420 of 2021
fix the compensation. Admittedly, the land was acquired in the year
2008 and the land acquisition process was completed in the year 2009.
However, the sale deed was executed on 16.02.2012 and the
compensation was paid to the petitioner on 16.02.2012. Therefore, the
petitioners sustained loss of cultivation of the subject property from the
year 2008 till the execution of sale deed dated 16.02.2012. Therefore,
the petitioners are entitled for loss of income from the year 2008 to
16.02.2012. The Judgment relied upon by the petitioner related to right
over the property. Whereas, in the case on hand, the property was also
acquired under private negotiation and the petitioners were duly paid
compensation under the sale deed dated 16.02.2012. The above
judgment are not applicable to the case on hand. Therefore, the first
respondent rightly rejected the representation of the petitioner and this
Court finds no infirmity or illegality in the order passed by the first
respondent. Hence, the writ petition is devoid of merits.
13. Insofar as the fixation of land value dated 28.02.2011, which
was in force for the private negotiation in that period. Therefore, the
re-fixation of the land value would arise only if the land was acquired
under the Act and not to private negotiation accepted by both the parties
i.e., the requestion body and the land owners. Therefore, the petitioners
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W.P.No.7420 of 2021
are directed to make a fresh representation to the first respondent in
respect of the loss of income for the period from 2008 to 16.02.2012 and
on receipt of the same, the first respondent is directed to consider the
same and fix the compensation for loss of income for the period from
2008 to 16.02.2012 to the land comprised in survey Nos.868/1, 868/2,
869/1A, 869/2, 847A/5A in all measuring 73 cents (32000 sq.ft) under
the Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013, within a period of six weeks
from the date of receipt of a copy of this order.
14. In the result, the writ petition stands dismissed. No costs.
10.11.2021
Index : Yes/No.
Internet : Yes/No.
Lpp
To
1. The District Collector,
Tiruvannamalai,
Tiruvannamalai District.
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W.P.No.7420 of 2021
G.K.ILANTHIRAIYAN, J
Lpp
2. The Chief Administrative Officer,
Construction Division,
Southern Railway,
Egmore, Chennai – 600 008.
3. The Tahsildar,
Office of the Tahsildar,
Polur – 606 803,
Tiruvannamalai District.
W.P. No. 7420 of 2021
10.11.2021
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