Madras High Court
The Competent Authority Cum vs S.Rudhra Devi on 5 September, 2023
W.A.(MD) No.92 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.A.(MD) No.92 of 2022
and
C.M.P.(MD)No.988 of 2022
1.The Competent Authority cum
District Revenue Officer,
(Competent Authority-LA under NH Act),
National Highways-209,
Dindigul 624 004,
Dindigul District.
2.The Divisional Engineer,
National Highways Division,
19A, Jawahar Street,
Madurai-625 020,
Madurai District.
3.The Special Tahsildar-LA,
National Highways-209 (bypass),
1st Floor, Sakthi Complex,
Opp. Krishna School,
Oddanchatram-624 619,
Dindigul District. ... Appellants/Respondents 1, 2 & 4
-vs-
1.S.Rudhra Devi
2.S.Jeyalakshmi ... 1st & 2nd Respondents/Petitioners
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W.A.(MD) No.92 of 2022
3.The Project Director,
National Highways Authority of India,
Project Implementation Unit,
Plot No.1, Aiswaryam Heights,
Indira Nagar, Sennamanaickenpatti PO,
Thadicombu Road,
Dindigul 624 004,
Dindigul District. ... 3rd Respondent/3rd Respondent
PRAYER: Writ Appeal has been filed under Clause 15 of Letters Patent to set
aside the order, dated 22.07.2021 in W.P.(MD)No.14914 of 2020 on the file of
this Court.
For Appellants : Mr.Veerakathiravan
Additional Advocate General
assisted by Mr.M.Lingadurai
Special Government Pleader
For R1 to R2 : Mr.M.Ajmalkhan
Senior Counsel
For R3 : Mr.C.Arulvadivel @ Sekar
Standing Counsel
JUDGMENT
[Judgment of the Court was made by D.BHARATHA CHAKRAVARTHY, J.]
This writ appeal is directed against the common order of the learned
Single Judge made interalia in W.P.(MD)No.14914 of 2020. In the said writ
petition, the respondents 1 and 2 herein had prayed for a mandamus directing
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W.A.(MD) No.92 of 2022
the first respondent, namely, the competent authority cum District Revenue
Officer under the National Highways Act, 1956 to redetermine the
compensation in terms of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 in compliance of
Section 105(3) in terms of paragraphs 4.6(iii)(a) and (b) of the Government of
India Comprehensive Guidelines in NH-11011/30/2015-LA dated 28.12.2017
and pay the redetermined compensation along with interest.
2. The brief facts leading to the filing of this writ appeal are that by a
notification dated 15.02.2012 under Section 3A(1) of the National Highways
Act, 1956, the notification was published in Gazette No.252 intending to
acquire the lands belonging to the respondents 1 and 2 herein for the purpose
of formation of national highways. Pursuant thereto a notice under Section
3D(1) was published in Gazette No.1712 on 31.08.2012 and thereafter, an
award was passed on 30.12.2013. Aggrieved by the quantum, the respondents
1 and 2 and others invoked statutory arbitration by filing Claim No.3 of 2015
before the District Collector/Arbitrator. When the said arbitration proceedings
were pending, the Government of India, Ministry of Road Transport and
Highways issued Comprehensive Guidelines in NH11011/30/2015-LA dated
28.12.2017 whereby, the entire issue relating to the payment of compensation
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W.A.(MD) No.92 of 2022
in respect of lands acquired under the provisions contained in Section 3 of the
National Highways Act, 1956 was reviewed. The fact that the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 came into force with effect from 01.01.2014 and the
fact that certain provisions of the said Act became applicable to the other Acts
mentioned in the Fourth Schedule which included the National Highways Act
1956 with effect from 01.01.2015 in terms of Section 105(3) of the Act of 2013
was taken into account and the relevant portion of the guidelines read thus:
“(iii) By now, it is also a settled proposition that the First, Second
and Third Schedule of the RFCTLARR Act, 2013 shall be applicable to
the NH Act , 1956 with effect from 01.01.2015. As such, the following
is clarified:
(a) All cases of Land acquisition where the Awards had
not been announced under Section 3G of the NH Act till
31.12.2014 or where such awards had been announced but
compensation had not been paid in respect of majority of the
land holdings under acquisition as on 31.12.2014, the
compensation would be payable in accordance with the First
Schedule of the RFCTLARR Act, 2013.
(b) In cases, where the land acquisition process was
initiated and award of compensation under Section 3G had also
been announced before 01.01.2015 but the full amount of
Award had not been deposited by the acquiring agency with the
CALA, the compensation amount would be liable to be
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W.A.(MD) No.92 of 2022
determined in accordance with the First Schedule w.e.f.
01.01.2015;
(c) In cases, where the process of acquisition of land stood
completed (i.e. Award under Section 3G announced by CALA,
amount deposited by the acquiring agency with the CALA, and
compensation paid to the landowners in respect of majority of
the land under acquisition) as on or before 31.12.2014, the
process would be deemed to have been completed and settled.
Such cases would not be re-opened.”
3. Thus it can be seen as far as the present acquisition is concerned
firstly separate awards were passed in respect of each of the revenue village.
The consolidated statement furnished on behalf of the appellants reads as
follows:
Sl. Name of the Date of Award Date of Disbursement Percent-
No. Village Award Amount Rs. Deposit in of Amount to age of
CALA A/c beneficiaries Distribu-
tion
1 Lakkayankottai 10.12.2013 78,71,623 22.02.2014 43,72,670 55.54
2 Athikombai 20.12.2013 15,02,988 22.02.2014 2,76,808 18.41
3 Kalanjipatti 31.12.2013 26,97,822 26.03.2014 16,04,450 59.47
4 Kollapatti 26.12.2013 55,41,643 22.02.2014 54,97,251 99.19
5 Arasapapillai- 28.12.2013 1,38,31,432 26.03.2014 1,38,08,463 99.83
patti
6 Oddanchatiram 30.12.2013 25,40,08,874 29.04.2015 21,82,47,935 85.92
Total 28,54,54,382 24,37,07,577 85.37
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W.A.(MD) No.92 of 2022
The lands of the appellants/respondents herein in the instant case are
located in Oddanchatram and thus it can be seen that straightaway the case
of the appellants/respondents is covered by the clarification 4.6(iii)(b).
Secondly, on behalf of the writ petitioners, the following facts relating to the
total areas of the land acquired as per notification is furnished of which it can
be seen that a majority of the area acquired or within Oddanchatram Village
covered by the deposit which was after 01.01.2015:
B.Particulars of Village wise Land Acquired under the relevant
Notification and the Land Holdings for which Payments were made to
Landowners by CALA till 31.12.2014
Sl.No. Village Total Land Area Land Area for
Acquired As per which payments
Notification in made by CALA till
(Sq.Mtr) 31.12.2014
(Sq.Mtr)
1 Lakkaiyankottai 68,534 40,967
2 Athikombai 29,130 22,360
3 Kollapatti 57,022 54,192
4 Arasappapillaipatti 1,05,523 71,345
5 Oddanchatram 2,52,298 NIL
6 Kalanjipatti 40,730 29,955
Total 5,53,237 2,18,819
Percentage 100% 39.55%
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W.A.(MD) No.92 of 2022
As a matter of fact in the appellants' tabular column, they had taken
into account the Oddanchatram Village also. But if Oddanchatram is removed
from the calculation, the total percentage for which, the payments have been
made before 31.12.2014 comes to only 39.55% on the above table by the
respondents 1 and 2 depicts the same. Thus, the case of the writ petitioners
also fall within the 4.6(iii)(a) of the circular. Therefore, it can be seen that the
case of the appellants/respondents is covered both under clause 4.6(iii)(a) and
(b) and thus there is no infirmity whatsoever in the learned Singe Judge
directing the re-determination of the compensation.
4. The contention of the learned Additional Advocate General that the
appellants/respondents ought to have raised the same before the Arbitrator
and that even if the Arbitrator has not considered the same, they should have
filed an application for setting aside the arbitral award under Section 34 of the
Arbitration and Conciliation Act is untenable for the reasons that:
(i) The prayer of the writ petitioners is to re-determine the compensation
by awarding additional amounts which they are entitled to under Act 30 of
2013. Therefore, the Court dealing with an application under Section 34 of the
Arbitration and Conciliation Act cannot meddle with the award it has to either
accept the same or set aside the same;
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W.A.(MD) No.92 of 2022
(ii) When the circular itself was issued on 28.12.2017, the arbitral
proceedings were pending before the District Collector/Land Acquisition
Arbitrator. Therefore, the appellants/respondents cannot be found fault for
specifically not raising the issue in the claim petition;
(iii) On the other hand, the said argument is raised on behalf of the
National Highways Authorities, the State cannot be countenanced in the teeth
of the Article 300A of the Constitution of India. Even if the person or an
individual, over looks or unknowingly does not claim the benefit of a provision
of grant of compensation where the State exercises eminent domain and
acquires the land, it cannot be heard to contend that by oversight the other
person has not raised the issue and therefore, it will not pay the
compensation. These kind of procedural argument cannot be accepted on
behalf of the State which would go against the core principles of fair and
adequate compensation to be paid in matters of compulsory land acquisition
done in exercise of its eminent domain;
(iv) Such a procedural argument is also bound to fail on the face of the
another procedural argument that when the District Collector has been
consulted right from the beginning on the formation of the Highways,
determination of the compensation etc., and when he signs a file as a
supervising authority at every stage of the proceedings, the very nomination of
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W.A.(MD) No.92 of 2022
the District Collector by a general order as the arbitrator by itself would render
the arbitral proceedings per se illegal;
(v) The circular dated 28.12.2017 r/w the mandatory legal provisions
under Act 30 of 2013 enjoins the duty on the appellants to redetermine the
compensation. The circular gives a right to seek for redetermination and not
merely to attack the error in the original determination which is only the
purpose of the arbitral proceedings.
For all the above reasons, we reject the said contention raised by the
learned Additional Advocate General on the behalf of the appellants.
5. It is the further contention of the learned Additional Advocate General
that by the order of the learned Single Judge ordering redetermination, now
there is a question as to who has to bear the costs as to whether the State
Government or Central Government as the National Highways is to be vested
with the Central Government. The said question is totally out side the scope of
present lis. The writ Petition is filed against the competent authority
designated as per the provisions of the Act, who acquired the land who has a
duty to determine/redetermine the compensation in accordance with law.
Therefore, a question which is beyond the scope of the lis as between the
competent authority and the respondents 1 and 2, the land owners cannot be
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W.A.(MD) No.92 of 2022
brought in the present appeal and therefore, we are refrain from making any
comment with respect to the said contention except to conclude with the same
is not a relevant consideration for deciding the writ appeal. The issue may be
raised by the respective authorities before the appropriate forum.
6. Accordingly, finding no merits, the writ appeal stands dismissed. The
appellants are directed to comply with the directions of the learned Single
Judge in paragraph No.25 of the order in W.P.(MD)No.14914 of 2020 dated
22.07.2021 within a period of two months from the date of receipt of a copy of
this order. No costs. Consequently, connected miscellaneous petition is closed.
[S.S.S.R., J.] [D.B.C., J.]
05.09.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sji
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W.A.(MD) No.92 of 2022
S.S.SUNDAR, J.
and
D.BHARATHA CHAKRAVARTHY, J.
sji
W.A.(MD) No.92 of 2022
and
C.M.P.(MD)No.988 of 2022
05.09.2023
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https://www.mhc.tn.gov.in/judis
