Madras High Court
Mumtaj Begam vs / on 7 December, 2023
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
WP(MD)Nos.12803 & 20504 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.12803 & 20504 of 2021
Mumtaj Begam ...Petitioner in WP(MD)No.12803/2021
1.Amutha
2.P.Ramesh
3.P.Suresh ...Petitioners in WP(MD)No.20504/2021
/Vs./
1.The Commissioner of Land Administration,
Chennai.
2.The District Collector,
Tiruchirappalli.
3.The Land Acquisition Officer Cum
District Revenue Officer,
Tiruchirappalli.
4.The Special Tahsildar,
Land Acquisition,
Rail Vikas Nigam Ltd.,
Unit-II, Tiruchirappalli.
5.The General Manager,
Southern Railway,
Chennai.
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6.The Executive Engineer (Constructions),
Southern Railway,
Madurai-625016.
7.The Manager/civil,
Rail Vikas Nigam Ltd.,
Chennai-600 006. ....Respondents in both petitions
COMMON PRAYER:- Petitions - filed under Article 226 of the Constitution of
India, to issue a Writ of Declaration declaring that the deduction of development
charges of 33.33 percentage in Serial No.14 in the award dated 25.01.2021 in
Award No.11/2020-2021 in Na.Ka.C5/14030/2018 for linear acquisition of land
for doubling of broad gauge railway line from Vilupuram to Dindigul under the
Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 as illegal and
null and Void and Writ of Certiorarified Mandamus, to call for records relating
to the individual award in Serial No.72, Serial No.69 dated 25.01.2021 passed
by the 3rd respondent and quash the same so far as deduction of development
charges of Rs.9,15,034-11p & Ea,26,96,450-89p respectively and
consequentially, directing the respondents to disburse the above said amount
with subsequent interest to the petitioners within a time limit that may be
stipulated by this Court.
Appearance in both petitions:-
For Petitioners : Mr.J.Barathan
For Respondents : Mr.R.Baskaran
Addl. Advocate General
assisted by
Ms.S.Jeyapriya (R1 to R4)
Mr.A.Haja Mohideen (R5 to R7)
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COMMON ORDER
The issue involved in both these writ petitions are common and hence,
they were taken up together, heard and disposed of through this common order.
2. The petitioners in WP(MD)No.20504 of 2021 have challenged the
award passed by the third respondent dated 25.01.2021, wherein the third
respondent has deducted 1/3rd towards development charges from the total
compensation payable to the petitioners. Similarly, the petitioner in
WP(MD)No.12803 of 2021 has also questioned the deduction of 1/3rd towards
development charges in the award that was passed by the third respondent dated
25.01.2021.
3. Heard Mr.J.Barathan, learned counsel appearing for the petitioners,
Mr.R.Baskaran, learned Additional Advocate General for the respondents 1 to 4
and Mr.A.Haja Mohideen, learned counsel for the respondents 5 to 7.
4. In the instant case, the lands were acquired under the Tamil Nadu
Acquisition of Land for Industrial Purposes Act, 1997 for the purpose of laying
and doubling a broad gauge railway line from Villupuram to Dindigul. While
fixing the compensation by passing an award, 1/3rd was deducted towards
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WP(MD)Nos.12803 & 20504 of 2021
development charges and the same has been put to challenge in these writ
petitions.
5. The issue involved is no longer res integra and it is squarely covered
by the judgments of the Hon'ble Apex Court and also the Division Bench of this
Court.
6. The first judgment to be relied upon is Nelson Fernandes and Others
vs. Special Land Acquisition Officer, South Goa and Others reported in 2007
(9) SCC 447 and the relevant portions are extracted hereunder:-
“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,
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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 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.”
7. The next judgment that can be taken note of is C.R.Nagaraja Shetty
vs. Special Land Acquisition Officer and Estate Officer and Another reported
in 2009 (5) LW 64 and 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 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
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WP(MD)Nos.12803 & 20504 of 2021
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 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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WP(MD)Nos.12803 & 20504 of 2021
8. The judgment of the Division Bench of this Court in Project
Director, National Highways Authority of India vs. M.Vijayalakshmi and
Another reported in 2020 SCC Online Mad 1119 can also be relied upon and
the relevant portions are 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. 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
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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.
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.”
9. It is clear from the above judgments that 1/3rd towards development
charges cannot be deducted insofar as the linear projects are concerned and
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particularly, where the acquisition was made for laying and doubling of the
broad gauge railway line from Villupuram to Dindigul. In view of the same, the
deduction of 1/3rd towards development charges in the award passed by the third
respondent dated 25.01.2021, in both the writ petitions is hereby set aside.
There shall be a direction to the third respondent to re-work the compensation
by adding 1/3rd development charges that was deducted and the total
compensation shall be paid to the petitioners within a period of six weeks from
the date of receipt of a copy of this order.
10. In the result, the writ petitions are allowed with the above
directions. No costs.
07.12.2023
NCC : Yes/No
Internet :Yes/No
Index :Yes/No
sm
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WP(MD)Nos.12803 & 20504 of 2021
N.ANAND VENKATESH, J.
sm
TO:-
1.The Commissioner of Land Administration,
Chennai.
2.The District Collector,
Tiruchirappalli.
3.The Land Acquisition Officer Cum
District Revenue Officer,
Tiruchirappalli.
4.The Special Tahsildar,
Land Acquisition,
Rail Vikas Nigam Ltd.,
Unit-II, Tiruchirappalli.
Common Order made in
W.P.(MD)Nos.12803 & 20504 of 2021
Dated:
07.12.2023
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