Madras High Court
C.Shanmuga Sundaram vs The District Collector on 7 December, 2023
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
W.P(MD)Nos.19772 & 14369 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH
COURT
DATED : 07.12.2023
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
W.P(MD)Nos.19772 & 14369 of 2021
and
W.M.P(MD)No.16461 of 2021
W.P(MD)No.19772 of 2021:
C.Shanmuga Sundaram ... Petitioner
Vs.
1.The District Collector
Trichy District,
Trichy.
2.The District Revenue Officer,
(Regular),
Trichirapalli.
1/26
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3.The Special Tahsildar, (Land Acquisition),
Villupuram to Dindigul Double Track,
Collectorate,
Trichirapalli.
4.The Divisional Manager
Southern Railway,
Madurai. ...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus calling for
records pertaining to the impugned order dated 07.09.2021 in
Na.Ka.C5/12428/2018 of the second respondent and the impugned
order dated 24.09.2021 in Na.Ka.A1/53/2018 on the third respondent
and quash the same and consequently direct the respondents 2 and 3 to
re-do the exercise by following the judgement of the Hon'ble Supreme
Court and this Court in respect of deduction of one third amount
towards development charges.
2/26
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For Petitioner : Mr.J.Anandkumar
For Respondents : Mr.A.K.Manikkam – for R1 to R3
Special Government Pleader
Mr.K.R.Laxman – for R4
W.P(MD)No.14369 of 2021
C.Shanmuga Sundaram ... Petitioner
Vs.
1.The District Collector
Trichy District,
Trichy.
2.The District Revenue Officer,
(Regular),
Trichirapalli.
3.The Special Tahsildar, (Land Acquisition),
Double of Broad Gauge,
Villupuram to Dindigul
Collectorate,
Trichirapalli.
3/26
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4.The Divisional Manager
Southern Railway,
Madurai.
5.The Chief Project Manager/Co-ordination,
Rail Vikas Nigam Limited,
Mezzanine Floor,
Thirumayilai Railway Station,
Mylapore,
Chennai – 600 004. ...Respondents
(R5 is impleaded vide order of this Court, dated
07.12.2023 made in W.M.P.(MD)No.1918 of 2022)
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus calling for
records pertaining to the impugned order of the second respondent in
Na.Ka.C5/12428/2018 dated 23.07.2021 which was received by me on
27.07.2021 and quash the same and consequently, direct the
respondents to pay compensation to the petitioner forthwith.
4/26
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For Petitioner : Mr.J.Anandkumar
For Respondents : Mr.A.K.Manikkam – for R1 to R3
Special Government Pleader
Mr.K.R.Laxman – for R4
Mr.A.Haja Mohideen – for R5
COMMON ORDER
W.P.(MD)No.14369 of 2021 has been filed challenging
the impugned notice issued by the second respondent dated
23.07.2021.
2. W.P(MD)No.19772 of 2021 has been filed against the
final order passed by the second respondent through proceedings
dated 07.09.2021 and the subsequent order of the third respondent
dated 24.09.2021 and for a consequential direction to the respondents
2 and 3 to refix the compensation by not deducting 1/3 rd amount
towards development charges.
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3. This is the second round of litigation initiated by the
petitioner and the background facts of this case was dealt with in the
earlier order passed by this Court in W.P.(MD)No.14533 of 2019
dated 26.04.2021 and the relevant portions are extracted hereunder:
“2. The case of the petitioner is that he was the
owner of the subject property measuring an extent of
0.92 acres. Based on the requisition given by the
railways, the acquisition proceedings were initiated
under the Tamil Nadu Acquisition of Land for
Industrial Purposes Act, in the year 2013. The
property was also acquired and it was handed over to
the railways and it is stated that the laying of the
total track for the route from Villupuram to Dindigul
was also completed and is being put to use.
3. The petitioner has been running from pillar
to post to get the compensation for the lands acquired
from him and since the same was not paid to him, the
present writ petition has been filed before this Court
seeking for appropriate directions.
4. The first and third respondents have filed a
counter affidavit in this case. The relevant portion in
the counter affidavit is extracted hereunder:
“7. ......... In order to acquire the said
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land for doubling of Broad Gauge Railway
line between Villupuram and Dindigul, the
Administration sanctioning order was issued
in G.O.Ms.No.492 dated 8.12.2017 and the
District Collector, Trichirappalli have also
made the proposal regarding compensation in
Na.Ka.C1/12428/2018 dated 11.6.2018 for
the land acquired in several Taluks including
the Manapparai Taluk where the petitioner's
land is situated. Most of the land acquired in
several Taluks, the compensation has been
arrived and paid to the land owners.
Regarding the above said petitioner's Taluk,
the proposal order for the compensation to
the land acquired is yet to be completed.
Immediately after receiving of order from the
Government the respondents herein will
dispose the adequate compensation to the
petitioner. Hence, there is no justifiable
reason in favour of the petitioner and
absolutely the writ petition is devoid of
merits.”
5. Heard Mr.J.Anandkumar, learned counsel
appearing for the petitioner, Mr.M.Muniasamy,
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learned Additional Government Pleader appearing
for the respondents 1 to 3 and Mr.S.Manohar,
learned counsel appearing for the respondents 2, 4
and 5.
6. There are no serious disputes with regard to
the facts of the present case. It is a matter of fact that
the property belonging to the petitioner was acquired
and it has already been put to use from the year 2016
onwards. Insofar as the payment of compensation is
concerned, the first respondent has taken a stand that
already a proposal has been made in the year 2018
and insofar as the Taluk within which the petitioner's
property was acquired, the Government is yet to pass
orders and the same is awaited.
7. In the considered view of this Court, the
petitioner has been deprived of his property for the
last 7 years and the alacrity that was shown in
acquiring the property was not shown when it came
to payment of compensation. The petitioner need not
stand with the begging bowl for getting the
compensation and he is entitled for such a
compensation as a matter of right and such a right is
recognized under Article 300-A of the Constitution of
India. Unfortunately, the petitioner is yet to see the
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colour of the coin.
8. In view of the above, there shall be a
direction to the first respondent to pay the
compensation to the petitioner pursuant to the
representation made by the petitioner on 8.1.2019,
within the period of eight (8) weeks from the date of
receipt of a copy of this order. It is made clear that
no further extension of time will be granted in this
case and the compensation has to be paid within the
time stipulated by this Court.”
4. Pursuant to the above order, the petitioner submitted a
fresh representation dated 12.05.2021 and an enquiry was fixed by the
third respondent. The petitioner appeared in person and produced all
the relevant documents. During the enquiry, the petitioner was
informed that 1/3rd of the amount is deducted towards development
charges from the total compensation. The petitioner did not agree for
the same and he made yet another representation on 28.06.2021 by
objecting to the deduction towards development charges.
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5. The first respondent through the impugned notice dated
23.07.2021 informed the petitioner that since the petitioner was not
willing for negotiation, steps will be taken to initiate proceedings
under the Tamil Nadu Acquisition of Land for Industrial Purposes
Act, 1997. It is against this communication, W.P.(MD)No.14369 of
2021 has been filed.
6. The first respondent thereafter, issued a letter, dated
07.09.2021 by enclosing the draft award by fixing the compensation at
Rs.16,45,322/- after deducting a sum of Rs.5,48,440/- which is 1/3rd
towards development charges. Subsequently, the third respondent
through proceedings dated 24.09.2021 informed the petitioner about
the award passed and directed the petitioner to submit all the relevant
documents. This has been put to challenge in W.P.(MD)No.19772 of
2021.
7. The District Revenue Officer has filed a common
counter affidavit. The relevant portions in the common counter
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affidavit is extracted hereunder:
“6.It is humbly submitted that the land of the
petitioner land measuring Hec.0.03.50 nearly 8 cents
though originally proposed for acquisition was
already proposed for withdrawal under sec 4(1) of
Tamil Nadu Industrial purposes Act 1997 as per the
request of Southern Railways as the land was no
longer required since the requirement of Disaster
Management will be met with the available land. It is
further submitted that the current running Broad-
Gauge Railway Line was entirely laid in Railway
Departments own land and not in the petitioner's
land and the possession of the land in SF.No.312/ 12
was not taken and Land Transfer certificate was also
not given to the Railway till date. Hence, at present
the petitioner's land at Higher cost at Sq.Mt. rate is
not needed to the fourth respondent. Hence the
proposal is dropped hence the petitioner may take the
land for his own use.
7.It is humbly submitted, without prejudice to
the above contentions the classification of the land in
SF.No.312/12 measuring 0.92 acres per revenue
records and chitta is Agricultural Punja land.
Whereas, the guideline value which should have been
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fixed at acre was fixed at Sq.mt./Sq.ft rate classifying
it as Natham house site. But actually agricultural
land and not a house site. In this connection it is
submitted that when an agricultural land was plotted
as layout 33 % of land will be handed over to the
local body for laying of road and Open Space
Reservation such as park and play field. Thus when
the guide line value of agricultural land was fixed at
Sq.mt./Sq.ft it becomes mandatory to deduct 1/3
amount as conversion of agricultural land to house
site mandates 33% handing over of overall area. The
procedure is accepted in many judgements of the
APEX Court viz., in Civil Appeal Nos.4212--4223 of
2004 dated 30.09.2010 of the APEX Court of India. It
has also been justified by the APEX Court in A.P.
House Board versus K.Manohar Reddy and others in
Civil Appeal Nos.4212-4223 of 2004 dated
30.09.2010.
8......
9. At present the land is no more required for
the purpose of Doubling of Broad-Gauge Railway
Line Villuppuram - Dindigul and for purpose of
Disaster Management. Process for withdrawal of
0.03.50 Hec of land in SF.No.312/12 from acquisition
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was already initiated under section 4(1) of the Tamil
Nadu Acquisition of Land for industrial Purposes Act
1997. It is further submitted that the possession of the
land in SF.No.312/12 was not taken till date and
compensation amount was not paid to the petitioner,
hence at this stage the land is no more required to the
Railway.”
8. The short issue that arises for consideration in these
Writ Petitions is as to whether the respondents are justified in
deducting 1/3rd of the amount towards development charges from the
final compensation that was fixed.
9. Before going into the issue that has been projected in
these Writ Petitions, this Court has to necessarily deal with the stand
that has been taken by the second respondent in the counter affidavit
to the effect that the lands belonging to the petitioner is no longer
required and it is proposed to be withdrawn from the acquisition
proceedings and that the petitioner can very well use the lands for his
own purposes.
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10. The above stand taken by the second respondent is
unsustainable. Here is a case where the lands belonging to the
petitioner were put to use even without undergoing a formal procedure
under the Tamil Nadu Acquisition of Land for Industrial Purposes
Act, 1997. The petitioner was also not paid any compensation. It is
under these circumstances, the petitioner filed W.P.(MD)No.14533 of
2019 and the stand that was taken by the District Revenue Officer and
the Special Tahsildar was extracted in the earlier order at Paragraph
No.4 of the order. This Court after hearing all the parties gave a
finding at paragraph No.6 of the order to the effect that the property of
the petitioner has been acquired and it has already been put to use
from the year 2016 onwards. Therefore, this Court directed the
payment of compensation to the petitioner. Hence, it is too late in the
day for the District Revenue Officer to take a stand in the counter
affidavit as if the lands belonging to the petitioner are not required and
that the petitioner can utilise the said lands.
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11. The respondents have virtually attempted to put the
cart before the horse. Instead of acquiring the lands and paying the
compensation, the respondents have started the process of determining
the compensation and thereafter, initiated proceedings for acquisition
of the lands under the Tamil Nadu Acquisition of Land for Industrial
Purposes Act, 1997. By the time, this acquisition proceedings was
initiated, it was a fait accompli since the lands have already been
taken over and the petitioner has been struggling to get the
compensation from the year 2016 onwards. In view of the same, this
Court will not permit the second respondent to take a stand to the
effect that the lands belonging to the petitioner are not required and
there is a proposal for dropping the acquisition proceedings. By taking
this stand, the petitioner will be virtually left in lurch. At least after
the earlier order was passed by this Court in W.P.(MD)No.14533 of
2019 dated 26.04.2021, the petitioner was under the fond hope that he
will at least receive compensation. However, in the year 2023, the
petitioner is informed that his lands are not acquired and in view of
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this stand, the respondents are attempting to deprive the petitioner
from payment of compensation. This Court finds that the stand taken
by the second respondent is unreasonable and it causes great prejudice
to the petitioner who has already lost his property. If this stand is
entertained, the right that has been guaranteed under Article 300A of
the Constitution of India will become a dead letter.
12. Having come to a conclusion regarding the stand taken
by the second respondent, the next issue to be taken into consideration
is with regard to the compensation that has been fixed by the
respondents. The main grievance that was projected by the petitioner
is that the respondents ought not to have deducted 1/3rd towards
development charges from the total compensation.
13. The issue involved is no longer res-integra and it is
now to well settled. Useful reference can be made to the judgment of
the Apex Court in Nelson Fernandes and Others vs Special Land
Acquisition Officer, South Goa and Others reported in 2007 (9) SCC
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447. The relevant portion is extracted hereunder:
“30. We are not, however, oblivious of the fact
that normally 1/3 deduction of further amount of
compensation has been directed in some cases.
However, the purpose for which the land acquired
must also be taken into consideration. In the instant
case, the land was acquired for the construction of
new BG line for the Konkan Railways. This Court in
Hasanali Khanbhai & Sons & Ors. Vs. State of
Gujarat, 1995 2 SCC 422 and L.A.O. vs. Nookala
Rajamallu, 2003 (10) Scale 307 had noticed that
where lands are acquired for specific purposes
deduction by way of development charges is
permissible. In the instant case, acquisition is for
laying a railway line. Therefore, the question of
development thereof would not arise. Therefore, the
order passed by the High Court is liable to be set
aside and in view of the availability of basic civic
amenities such as school, bank, police station, water
supply, electricity, high way, transport, post, petrol
pump, industry, telecommunication and other
businesses, the claim of compensation should
reasonably be fixed @ Rs.250/- per sq. mtr. with the
deduction of 20%. The appellant shall be entitled to
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all other statutory benefits such as solatium, interest
etc. etc. The appellants also will be entitled to
compensation for the trees standing on the said land
in a sum of Rs. 59,192 as fixed. I.A. No. 1 of 2006 for
substitution is ordered as prayed for.”
14. The next judgment to be taken into consideration is in
the case of C.R.Nagaraja Shetty Vs. Special Land Acquisition
Officer and Estate Officer and another in Civil Appeal No.1173 of
2009 dated 24.02.2009. The relevant portions are extracted
hereunder:
“ We cannot ignore the fact that the land is acquired
only for widening of the National Highway. There
would, therefore, be no question of any such
development or any costs therefor. In the reported
judgment in Nelson Fernandes and Others Vs.
Special Land Acquisition Officer, South Goa and
Others in 2007(9) SCC 447, this Court has
discussed the question of development charges. That
was a case, where, the acquisition was for laying a
Railway line. This Court found that the land under
acquisition was situated in an area, which was
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adjacent to the land already acquired for the same
purpose, i.e., for laying Railway line. In paragraph
29, the Court observed that the Land Acquisition
Officer, the District Judge and the High Court had
failed to notice that the purpose of acquisition
was for Railways and that the purpose is a
relevant factor to be taken into consideration for
fixing the compensation. The Court relied on
judgment in Viluben Jhalejar Contractor Vs. State
of Gujarat reported in 2005(4) SCC 789, where it
was held that the purpose for which the land is
acquired, must also be taken into consideration in
fixing the market value and the deduction of
development charges. Further, in paragraph 30,
the Court specifically referred to the deduction for
the development charges and observed:-
“30. We are not, however, oblivious of the
fact that normally 1/3rd deduction of
further amount of compensation has been
directed in some cases. However, the
purpose for which the land is acquired
must also be taken into consideration. In
the instant case, the land was acquired
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for the construction of new BG line for
the Konkan Railways ………….... In the
instant case, acquisition is for laying a
railway line. Therefore, the question of
development thereof would not arise.”
The Court made a reference to two other cases,
viz., Hasanali Khanbhai & Sons Vs. State of Gujarat
and Land Acquisition Officer Vs. Nookala Rajamallu
reported in 1995 (5) SCC 422 and 2003(12) SCC 334
respectively, where, the deduction by way
development charges, was held permissible. The
situation is no different in the present case. All that
the acquiring body has to achieve is to widen the
National Highway. There is no further question of
any development. We again, even at the cost of
repetition, reiterate that no evidence was shown
before us in support of the plea of the proposed
development. We, therefore, hold that the High Court
has erred in directing the deduction on account
of the developmental charges at the rate of Rs.
25/- per square feet out of the ordered
compensation at the rate of Rs.75/- per square feet.
We set aside the judgment to that extent.”
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15. The Division Bench of this Court has also considered
this issue in C.M.A.(MD)No.560 of 2018 etc., dated 13.02.2020 and
the relevant portion is extracted hereunder:
“75.Deduction towards development charges
from the compensation awarded to the land loser was
held to be permissible when it was established by
positive evidence that such development charges are
justified. The expenditure to be incurred should come
from the need of development contemplated and the
expenditure which is likely/reasonably required for
such development. In none of the cases before us,
there was any positive evidence placed by NHAI to
justify deduction towards development charges.
Deduction towards development charges cannot be
on ipse dixit, but required to be established by
positive evidence. NHAI, by relying on the decisions
to state that development charges can be as high as
70% can in no manner improve their case. As pointed
out, no evidence was placed by NHAI to justify
deduction of development charges.
76.In Nelson Fernandes And Ors. vs. Special
Land Acquisition Officer, South Goa And Ors.
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reported in (2007) 9 SCC 447, the Hon'ble Supreme
Court discussed the question of development charges.
In the said case, lands were acquired for laying a
Railway line. It was found that lands which were
acquired were adjacent to the land which was
already acquired for the same purpose, which fact
was not noticed by the Land Acquisition Officer,
District Court and the High Court and that the
purpose of acquisition is a relevant factor to be taken
into consideration while fixing compensation. Similar
view was taken in Viluben Jhalejar Contractor vs.
State of Gujarat reported in (2005) 4 SCC 789.
77.In C.R.Nagaraja Shetty (supra), the
acquisition was for widening of the National
Highway. The High Court deducted Rs.25/- per
square feet for development charges. On appeal by
the land loser, the Hon'ble Supreme Court pointed
out that when lands are acquired for public purposes
like setting up of industries, setting up of housing
colonies or other such allied purposes, the acquiring
body would be entitled to deduct some amount from
the payable compensation on account of development
charges, however it has to be established by positive
evidence that such development charges are justified.
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With regard to acquisition of land for widening of the
existing National Highway, it was held that land is
acquired only for widening of the National Highway,
there would, therefore be no question of any such
development or any costs thereof. In the said case,
there was no evidence placed by the acquiring body
before the district Court that it would incur
development charges. This decision would come to
the aid and assistance of the land losers before us,
which leads us to hold that deduction towards
development charges is not sustainable and
accordingly, the same are set aside.”
16. It is clear form the above judgment that where the
lands are acquired for laying a railway line, there is no scope for
deducting 1/3rd amount towards development charges. In the instant
case, while calculating the total compensation, a sum of Rs.5,48,440/-
has been deducted towards development charges and accordingly, out
of the total compensation of Rs.16,45,322/-, the petitioner is proposed
to be paid a compensation of Rs.10,96,852/-. This deduction towards
development charges is liable to be interfered by this Court.
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17. In the light of the above discussion, the impugned
proceedings that have been put to challenge in these Writ Petitions is
interfered and the 1/3rd deduction towards development charges is
hereby set aside. There shall be a direction to the respondents 2 and 3
to re-do the exercise of fixing the compensation by not deducting 1/3rd
towards development charges. The compensation, thus, fixed shall be
paid to the petitioner within a period of six weeks from the date of
receipt of a copy of this order. It is brought to the notice of this Court
that the Railways has already deposited the requisite amount before
the District Collector and therefore, the said amount can be utilised for
the payment of compensation to the petitioner.
18. In the result these Writ Petitions are allowed with the
above directions. No costs. Consequently, connected miscellaneous
petition is closed.
07.12.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes/No
RM
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To
1.The District Collector
Trichy District,
Trichy.
2.The District Revenue Officer,
(Regular),
Trichirapalli.
3.The Special Tahsildar, (Land Acquisition),
Villupuram to Dindigul Double Track,
Collectorate,
Trichirapalli.
4.The Divisional Manager
Southern Railway,
Madurai.
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N.ANAND VENKATESH, J.
RM
W.P(MD)Nos.19772 & 14369 of 2021
(2/2)
07.12.2023
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