Madras High Court
Tiruchengode Agricultural ... vs The District Collector on 7 October, 2021
W.P. Nos.1395 & 1396 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.10.2021
CORAM
THE HONOURABLE Mr. JUSTICE G.K.ILANTHIRAIYAN
W.P. Nos.1395 & 1396 of 2012
and
M.P. Nos.1 & 1 of 2012
WP.No.1395 of 2012
Tiruchengode Agricultural Producers'
Co.op.Marketing Society Ltd.,
Rep. by its Joint Registrar / Special Officer,
Siva.Muthukumaraswamy,
No.9, Kutcheri Street,
Velur Road,
Tiruchengode 637 211 ... Petitioner
Vs
1.The District Collector,
District Collector's Office,
Namakkal District,
Namakkal
2.The District Revenue Officer,
Namakkal District,
Namakkal
3.The Revenue Divisional Officer,
Tiruchengode
1/16
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W.P. Nos.1395 & 1396 of 2012
4.R.Radhakrishnan
5.K.S.Palaniappan
6.M.Mani
7.The Assistant Commissioner / Executive Officer,
Arulmighu Vinayagar Thirukoil &
Arulmighu Mariamman Thirukoil,
Sengodampalayam, Tiruchengode Taluk,
Namakkal District
(R5 & 6 impleaded vide court order dated
13.02.2014 in MP.No.2 of 2012 in
WP.No.1395 of 2012)
(R7 impleaded vide court order dated 02.03.2018
in MP.No.1 of 2014 in WP.No.1395 of 2012) ... Respondents
Prayer :- Writ Petition is filed under Article 226 of the Constitution of India
praying to issue a writ of certiorari calling for the records of the first
respondent pertaining to the proceedings in Na.Ka.No.21522 / 2010 (H-2)
dated 02.01.2012 and quash the same.
For Petitioner : Mr.AR.L.Sundaresan,
Senior Counsel
for Mr.P.Valliappan
For Respondents
For R1to3 : Mr.M.R.Gokul Krishnan,
Government Advocate
For R4 : Mr.R.Radhakrishnan
(party in person)
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W.P. Nos.1395 & 1396 of 2012
For R5 & 6: Mr.B.Kumar,
Senior Counsel
for Mr.S.P.Yuvaraj
For R7 : Mr.M.S.Palaniswamy
WP.No.1396 of 2012
Tiruchengode Agricultural Producers'
Co.op.Marketing Society Ltd.,
Rep. by its Joint Registrar / Special Officer,
Siva.Muthukumaraswamy,
No.9, Kutcheri Street,
Velur Road,
Tiruchengode 637 211 ... Petitioner
Vs
1.The District Collector,
District Collector's Office,
Namakkal District,
Namakkal
2.The District Revenue Officer,
Namakkal District,
Namakkal
3.The Revenue Divisional Officer,
Tiruchengode
4.R.Radhakrishnan
5.K.S.Palaniappan
6.M.Mani
7.The Assistant Commissioner / Executive Officer,
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W.P. Nos.1395 & 1396 of 2012
Arulmighu Vinayagar Thirukoil &
Arulmighu Mariamman Thirukoil,
Sengodampalayam, Tiruchengode Taluk,
Namakkal District
(R5 & 6 impleaded vide court order dated
13.02.2014 in MP.No.2 of 2012 in
WP.No.1395 of 2012)
(R7 impleaded vide court order dated 02.03.2018
in MP.No.1 of 2014 in WP.No.1396 of 2012) ... Respondents
Prayer :- Writ Petition is filed under Article 226 of the Constitution of India
praying to issue a writ of mandamus directing the respondents 1 to 3 to
remove the encroachments in the property comprised in old survey
Nos.115/2 & 116, new T.S.Nos.8,9 & 10, Kailasampalayam Village,
Tiruchengode Taluk, Namakkal District forthwith.
For Petitioner : Mr.AR.L.Sundaresan,
Senior Counsel
for Mr.P.Valliappan
For Respondents
For R1to3 : Mr.M.R.Gokul Krishnan,
Government Advocate
For R4 : Mr.R.Radhakrishnan
(party in person)
For R5 & 6: Mr.B.Kumar,
Senior Counsel
for Mr.S.P.Yuvaraj
For R7 : Mr.M.S.Palaniswamy
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W.P. Nos.1395 & 1396 of 2012
COMMON ORDER
The writ petition in WP.No.1395 of 2012 is filed to issue a
certiorari calling for the records of the first respondent pertaining to the
proceedings in Na.Ka.No.21522 / 2010 (H-2) dated 02.01.2012 and quash
the same. The writ petition in WP.No.1396 of 2012 is filed to issue a writ of
mandamus directing the respondents 1 to 3 to remove the encroachments in
the property comprised in old survey Nos.115/2 & 116, new T.S.Nos.8,9 &
10, Kailasampalayam Village, Tiruchengode Taluk, Namakkal District
forthwith.
2. The case of the petitioner in WP.No.1395 of 2012 is that the
petitioner requested the Government to arrange to initiate acquisition
proceedings under the emergent provisions of the Land Acquisition Act and
arrange to deliver the possession of the property for the urgent and
inevitable needs of the Society. On the request of the petitioner Society, to
an extent of 4.76 acres comprised in survey Nos.115/2 and 116 situated at
Kailasampalayam Village, Tiruchengode was identified and issued Gazatte
notification No.428 dated 10.09.1991. After following the procedure, the
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W.P. Nos.1395 & 1396 of 2012
land was acquired and award has been passed in Award No.1 of 1994-1995
dated 31.05.1994. The land was acquired for the purpose of construction of
additional godown, marketing yards, etc for the petitioner Society.
Thereafter the petitioner Society also paid a sum of Rs.11,35,650/- by two
instalments dated 26.03.1985 and 02.03.1992. At that juncture, the persons
who claimed to be the administrators of the temple called Mariamman
Temple at Sengodampalayam and Vinayagar Temple at T.Kailasampalayam
challenged the acquisition proceedings before this Court in WP.No.18429 of
1992 and by order dated 07.12.1999, this court dismissed the writ petition.
Aggrieved by the same, they also filed writ appeal in WA.No.154 of 2000
and the same was also dismissed by the Hon'ble Division Bench of this
Court by order dated 13.07.2001. Therefore, the acquisition proceedings
became final and the subject land had been taken possession by the
acquisition authority and handed over to the petitioner Society on
09.12.2000 under ROC.No.19611/2000A6. However, in Form No.11, it was
indicated that there was a tiled house, thatched house, borewell and a
Vinayagar Temple. The alleged Vinayagar Temple and borewell were not in
existence at the time of notification and only in the interregnum, it was put
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W.P. Nos.1395 & 1396 of 2012
up by encroachers . The petitioner repeatedly sent several representations to
the respondents 1 to 3 herein to remove the encroachments. However, while
pending the said request for removal of encroachment, the petitioner
received the impugned order in this writ petition dated 02.01.2012 thereby
the first respondent requested to send proposal for recommendation to the
Government to pass orders under Section 16-B of the Land Acquistion Act.
3. Mr.AR.L.Sundaresan, Senior Counsel appearing for the
petitioner submitted that once the land acquisition proceedings were
completed, possession of the subject property was handed over to the
petitioner Society as early as on 09.12.2000. The said land was acquired for
the purpose of construction of godown and marketing yards, etc for the
petitioner Society. When the petitioner Society intended to construct
godown and other buildings, the so called persons who claimed to be the
administrators of the Vinayagar Temple objected and also encroached two
cents of land and put up small temple. Therefore, they could not able to put
up any construction in the acquired land. In fact, they repeatedly requested
the respondents to remove the encroachments in the subject property.
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W.P. Nos.1395 & 1396 of 2012
Therefore, the petitioner also filed writ petition in WP.No.1396 of 2012 for
direction directing the respondents 1 to 3 herein to take appropriate action
to remove the encroachments in the subject property.
4. Mr.B.Kumar, Senior Counsel appearing for the respondents 5
and 6 submitted that the impugned order in this writ petition is only
communication between the first respondent and the third respondent. It is
nothing but requesting the third respondent to send proposal for
recommendation to pass orders by the Government under Section 16-B of
the Land Acquisition Act. He further submitted that the purpose for which
the land was acquired has not been utilised by the petitioner and the
possession of the subject property is also with them and as such the entire
acquisition proceedings have been lapsed.
5. Mr.M.S.Palaniswamy, the learned counsel for the seventh
respondent representing Arulmighu Mariamman Temple and Vinayagar
Temple filed counter affidavit and submitted that the subject lands are used
by the entire villagers for celebrating the annual festivals of both the
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W.P. Nos.1395 & 1396 of 2012
temples. The entire villagers used to congregate on festival days in the
subject property for worshipping the God enshrined Arulmighu Vinayagar
Temple. Therefore, the subject land is under the usage of religious purposes
and also the temple land is protected and guarded by the Government. In
fact, in the second appeal in SA.No.1726 of 1992 it was upheld that the
subject land of T Kailasampalayam Village belong to Arulmighu Vinayagar
Thirukoil at Kailasampalayam and Arulmighu Mariamman Thirukoil at
Sengodampalayam. However, the acquisition notice was not served to the
HR& CE Department at the time of acquisition of the subject land, and no
physical possession has been taken over from the temple authorities and
they are in possession and enjoyment of the entire subject property.
6. The fourth respondent Mr.R.Radhakrishnan, party in person is
present and submitted that the entire land belongs to Arulmighu Vinayagar
Thirukoil at Kailasampalayam and Arulmighu Mariamman Thirukoil at
Sengodampalayam and he is being one of the worshipper of the said temples
objected the entire acquisition proceedings. Though the land was acquired
and physical possession of the subject land has not been taken over and not
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W.P. Nos.1395 & 1396 of 2012
utilised for the purpose for which the land was acquired on the request of
the petitioner herein.
7. Heard, Mr.AR.L.Sundaresan, Senior Counsel appearing for the
petitioner, Mr.M.R.Gokul Krishnan, Government Advocate appearing for
the respondents 1 to 3, the fourth respondent Mr.R.Radhakrishnan (party in
person), Mr.B.Kumar, Senior Counsel appearing for the respondents 5 & 6,
and Mr.M.S.Palaniswamy, the learned counsel for the seventh respondent.
8. On perusal of the impugned order dated 02.01.2012, revealed
that the first respondent directed the third respondent to send a proposal to
cancel the acquisition of land for the reason that the land is not used for the
purpose for which it was acquired. Even then, it was served to the petitioner
and the parties concerned.
8. Whether the land belongs to the HR&CE Department or the
administrators i.e. the persons who challenged the acquisition proceedings
in WP.No.18429 of 1992 or the respondents 5 and 6 is not an issue in this
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W.P. Nos.1395 & 1396 of 2012
writ petition, since the subject land was already acquired and award has
been passed in Rc.No.1 of 1994-1995 dated 31.05.1994. On perusal of the
records, the petitioner is being the requisition body have deposited the
entire award amount and paid total compensation amount to the tune of
Rs.11,35,650/- by two instalments on 26.03.1985 and 02.03.1992. The land
acquisition proceedings was already challenged by the administrators of the
Vinayagar Thirukoil in WP.No.18429 of 1992 and the same was dismissed
and confirmed by the Hon'ble Division Bench of this Court in WA.No.154
of 2000 dated 13.07.2001. In respect of the very same subject property,
there was a suit filed by the petitioner in OS.No.862 of 1982 on the file of
the Principal Sub Court, Salem for declaration and permanent injunction
and the same was decreed by the judgment and decree dated 31.01.1992.
Aggrieved by the same, the defendants have preferred appeal suit in
AS.No.67 of 1992 and the same was dismissed and again, they filed second
appeal in SA.No.1726 of 1992 and the same was also dismissed by the
judgment and decree dated 27.02.2004. Thus, the subject property was
declared in favour of the petitioner in WP.No.18429 of 1992. Therefore, this
Court need not to decide the ownership of the subject land since already the
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W.P. Nos.1395 & 1396 of 2012
entire land was acquired on behalf of the petitioner Society and attained
finality.
9. The only point for consideration is that the first respondent
directed the third respondent to send proposal to cancel the acquisition
proceedings under Section 16-B of the Land Acquisition Act.
10. The learned Senior Counsel appearing for the petitioner also
produced photographs which revealed that the entire land is kept vacant and
a small temple is situated in the subject land. Thus it is clear that no
construction has been put up by the petitioner and the land is still lying
vacant. Therefore, the petitioner had sent so many representations to the
respondents 1 to 3 herein to initiate appropriate action to remove the
encroachments in the subject land. In fact, they also filed the other writ
petition in WP.No.1396 of 2012 seeking direction directing the respondents
1 to 3 herein to remove the encroachments in the subject property.
Therefore, the impugned order is nothing but directing the third respondent
to send proposal for recommendation to pass orders under Section 16-B of
the Land Acquisition Act, 1894.
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W.P. Nos.1395 & 1396 of 2012
11. In view of the above discussion, the impugned order cannot be
sustained and it is liable to be set aside and this Court deem it fit to direct
the first respondent to conduct enquiry with regard to sending proposal to
the Government to pass orders under Section 16-B of the Land Acquisition
Act. Accordingly, the impugned order dated 02.01.2012 is set aside. The
first respondent is directed to issue notice to the petitioner and the persons
interested over the subject land within a period of two weeks from the date
of receipt of copy of this order and after giving them opportunity of hearing
and conducting fresh enquiry and pass orders on merits and in accordance
with law to send proposal to the Government for passing orders under
Section 16-B of the Land Acquisition Act, within a period of twelve weeks
thereafter. It is made clear that all the parties are at liberty to submit relevant
documents to substantiate their respective contentions. Further, the first
respondent is directed to make physical inspection of the subject property, if
required.
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W.P. Nos.1395 & 1396 of 2012
12. With the above directions, both the writ petitions are disposed
of. Consequently, connected miscellaneous petitions are closed. No order as
to costs.
07.10.2021
lok
Index:Yes/No
Internet:Yes/No
Speaking/Non speaking
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W.P. Nos.1395 & 1396 of 2012
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W.P. Nos.1395 & 1396 of 2012
G.K.ILANTHIRAIYAN,J.
lok
To
1.The District Collector,
District Collector's Office,
Namakkal District,
Namakkal
2.The District Revenue Officer,
Namakkal District,
Namakkal
3.The Revenue Divisional Officer,
Tiruchengode
4.The Assistant Commissioner / Executive Officer,
Arulmighu Vinayagar Thirukoil &
Arulmighu Mariamman Thirukoil,
Sengodampalayam, Tiruchengode Taluk,
Namakkal District
W.P. Nos.1395 & 1396 of 2012
07.10.2021
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