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2012 DIGILAW 3419 (MAD)

G. Chandran v. Government of Tamil Nadu

2012-08-02

R.SUDHAKAR

body2012
Judgment :- 1. The prayer in the writ petition is to quash the order dated 25.05.2012 issued by the Second Respondent in respect of the land comprised in Old Survey No.1122/2 (part) and consequently direct the respondents, their men, servants, agents or anybody claiming under them from interfering with the petitioner's peaceful possession and enjoyment of the lands comprised in the land comprised in Old Survey No.1122/2 (part) measuring an extent of 58 cents comprised in Town Survey No.1 now sub-divided as T.S.No.1/2 situate at Ward D.Block No.115, Madhavaram Village, Madavaram Taluk, Thiruvallur District. 2. The Tamil Nadu Highways Department acquired lands for construction of grade separator at the intersection of GNT Road at 8/6 km of Moolakadai and initiated acquisition proceedings in respect of a large extent of land falling under several survey numbers and the acquisition proceedings reached its logical conclusion insofar as major portion of land required. However, insofar as few blocks or survey numbers certain mistakes crept in. In this case, the extent of land alone came to be wrongly mentioned in the notice under Section 15(2) of the Tamil Nadu Highways Act, 2001 and the paper publication as well. Hence, the petitioner is aggrieved. 3. In the present case, show cause notice under Section 15(2) Tamil Nadu Highways Act, 2001 was issued on 01.05.2010 and the extent of land was shown as 0.0207 square meters. An objection was filed and thereafter, the notification under Section 15 (1) of the Tamil Nadu Highways Act, 2001 was issued on 13.04.2011. In that the extent as against 0.0207 square meters was shown as 0207 square meters. Thereafter, notice under Section 19(2) of the Tamil Nadu Highways Act, 2001, was issued for conducting an enquiry to determine the compensation and this notice was issued on 19.08.2011. The petitioner's son appeared for enquiry and gave his objection on 02.09.2011 and in that objection proforma, the area has been mentioned by the petitioner himself as 207 square meters. The objection was recorded and thereafter, an award was passed on 25.05.2012 for an extent of 207 square meters. 4. At that stage, a notice was issued under Sections 19(3) and 19(6) of the Tamil Nadu Highways Act, 2001 to receive the compensation. The writ petition is filed challenging the notice issued under Sections 19(3) and 19(6) of the Tamil Nadu Highways Act, 2001. The notification under Section 15(1) is not under challenge. 4. At that stage, a notice was issued under Sections 19(3) and 19(6) of the Tamil Nadu Highways Act, 2001 to receive the compensation. The writ petition is filed challenging the notice issued under Sections 19(3) and 19(6) of the Tamil Nadu Highways Act, 2001. The notification under Section 15(1) is not under challenge. 5. The main plea taken by the learned counsel for the petitioner is that the extent shown in the show cause notice under Section 15(2) of the Tamil Nadu Highways Act, 2001 as 0.0207 square meters is at variance with the extent mentioned in the notification under Section 15(1) of the Tamil Nadu Highways Act, 2001 and in the subsequent proceedings. Therefore, prejudice is caused to the petitioner and his valuable right is defeated. 6. The counter affidavit has been filed by the respondents explaining the mistake in the show cause notice issued under Section 15(2) of the Tamil Nadu Highways Act, 2001. It is further stated that based on the notification under Section 15(1) of the Tamil Nadu Highways Act, 2001 and the notice under Section 19(2) of the Tamil Nadu Highways Act, 2001, an award has been passed giving the correct particulars of the land namely ward number, block number, survey number etc. It also includes the name of Village, name of Taluk and the District in detail. The mistake in the show cause notice issued under Section 15(2) of the Tamil Nadu Highways Act 2001 is attributed to clerical error. The Special Deputy Collector (Land Acquisition), who is present in person before this Court, states that the mistake is purely due to typographical error and also due to over sight. He undertakes to file a supporting affidavit by 03.08.2012, explaining the reason for the mistake. 7. In any event, it is pleaded by the learned Special Government Pleader that notification under Section 15(1) of the Tamil Nadu Highways Act 2001 contains all the particulars in detail and the petitioner's son appeared for the enquiry and was aware of the actual extent and thereafter, the award was passed for 207 square meter only. Therefore, this Court may condone the mistake committed in the notice under Section 15(2) of the Tamil Nadu Highways Act 2001. Therefore, this Court may condone the mistake committed in the notice under Section 15(2) of the Tamil Nadu Highways Act 2001. The petitioner will not be put to any prejudice, as the compensation for the actual land acquired will be paid as per the award, with a right to seek enhancement, if the petitioner so desires. The petitioner was aware of the correct extent at the time of award enquiry and has not objected. 8. In the circumstances of the present case, the notice under Section 15(2) of the Tamil Nadu Highways Act 2001 which did not contain correct extent, will cause some prejudice to the petitioner, at the time of making objection which however did not happen. It may be justified if the petitioner had come to this Court at an earlier point of time. At this stage, (i.e) after the passing of the award for the correct extent acquired, the petitioner plea for interference of the acquisition proceedings does not arise. This Court, in a similar issue and property, in respect of the very same project, a similar defect was pointed out. The Court took the view that the land owner should be suitably compensated instead of interfering with the acquisition proceedings, by relying upon the Supreme Court decision in 2005 13 SCC 477 . An order came to be passed in W.P.No.30107 of 2010 dated 26.07.2012. The relevant portion reads as follows: "13. In view of the above, the acquisition, for the purpose of putting up a grade separator under the State Highways Act , does not suffer from vagueness in description except to the extent that there is a mistake in the consequential proceedings under Section 19 of the Act. The error in the notice under Section 15(2) has been rectified by issuing an errata and therefore, the petitioner cannot plead prejudice. The petitioner has not chosen to participate in the award enquiry. If notification under Section 15(1) is not challenged, and it gives all particulars correctly, the petitioner can always claim compensation in terms of notification under Section 15(1) of the Act, which is the basis for grant of compensation. In the notice issued under Section 19 of the Act for determination of compensation, the discrepancy in the extent between the Tamil and English version. There is an error, which can be rectified. In the notice issued under Section 19 of the Act for determination of compensation, the discrepancy in the extent between the Tamil and English version. There is an error, which can be rectified. It has been pointed out by the petitioner on 26.10.2010 itself and the authorities are bound to take the said objection into consideration and grant compensation for the actual extent of 112 sq.meters, which is acquired under Section 15(1). 14. Since the Court has come to the conclusion that there is no error apparent in the acquisition proceedings and the notice under Section 15 (1) of the Act has not been challenged, the only point for consideration is the remedy to correct error committed in 15(2) public notice and to what relief. The Hon'ble Apex Court in COMPETENT AUTHORITY – Vs. - BARANGORE JUTE FACTORY AND OTHERS reported in (2005, 13, SCC 477 has a solution to the present problem. Paragraphs 14, 15 and 16, which is relevant reads as follows:- "(14).Having held that the impugned notification regarding acquisition of land is invalid because it fails to meet the statutory requirements and also having found that taking possession of the land of the writ petitioners in the present case in pursuance of the said notification was not in accordance with law, the question arises as to what relief can be granted to the petitioners. The High Court rightly observed that the acquisition of land in the present case was for a project of great national importance i.e. the construction of a national highway. The construction of a national highway on the acquired land has already been completed as informed to us during the course of hearing. No useful purpose will be served by quashing the impugned notification at this stage. We cannot be unmindful of the legal position that the acquiring authority can always issue a fresh notification for acquisition of the land in the event of the impugned notification being quashed. The consequence of this will only be that keeping in view the rising trend in prices of land, the amount of compensation payable to the landowners may be more. Therefore, the ultimate question will be about the quantum of compensation payable to the landowners. Quashing of the notification at this stage will give rise to several difficulties and practical problems. The consequence of this will only be that keeping in view the rising trend in prices of land, the amount of compensation payable to the landowners may be more. Therefore, the ultimate question will be about the quantum of compensation payable to the landowners. Quashing of the notification at this stage will give rise to several difficulties and practical problems. Balancing the rights of the petitioners as against the problems involved in quashing the impugned notification, we are of the view that a better course will be to compensate the landowners, that is, the writ petitioners appropriately for what they have been deprived of. Interests of justice persuade us to adopt this course of action. 15. Normally, compensation is determined as per the market price of land on the date of issuance of the notification regarding acquisition of land. There are precedents by way of judgments of this Court where in similar situations instead of quashing the impugned notification, this Court shifted the date of the notification so that the landowners are adequately compensated. Reference may be made to: (a) UjjainVikas Pradhikaran v. Raj Kumar Johri (b) Gauri Shankar Gaur v. State of U.P. (c) Haji Saeed Khan v. State of U.P. In that direction the next step is what should be the crucial date in the facts of the present case for determining the quantum of compensation. We feel that the relevant date in the present case ought to be the date when possession of the land was taken by the respondents from the writ petitioners. This date admittedly is 19-2-2003. We, therefore, direct that compensation payable to the writ petitioners be determined as on 19-2-2003, the date on which they were deprived of possession of their lands. We do not quash the impugned notification in order not to disturb what has already taken place by way of use of the acquired land for construction of the national highway. We direct that the compensation for the acquired land be determined as on 19-2-2003 expeditiously and within ten weeks from today and the amount of compensation so determined, be paid to the writ petitioners after adjusting the amount already paid by way of compensation within eight weeks thereafter. The claim of interest on the amount of compensation so determined is to be decided in accordance with law by the appropriate authority. The claim of interest on the amount of compensation so determined is to be decided in accordance with law by the appropriate authority. We express no opinion about other statutory rights, if any, available to the parties in this behalf and the parties will be free to exercise the same, if available. The compensation as determined by us under this order along with other benefits, which the respondents give to parties whose lands are acquired under the Act, should be given to the writ petitioners along with what has been directed by us in this judgment. 16. Accordingly, appeals filed by the competent authority [arising out of SLP (C) No. 16820 of 2004] and the National Highways Authority of India [arising out of SLPs (C) Nos. 17874-875 of 2004] are hereby dismissed while the appeal filed by Ridh Karan Rakecha and another [arising out of SLP (C) No. 18773 of 2004] is allowed in terms of the above judgment. There shall be no order as to costs." 15. The Apex Court in the above case considering the nature of the project i.e. National Highway, held that instead of quashing the notification, compensation should be determined on the basis of the market price of the land as on the date of taking possession of the land from the writ petitioner and by granting liberty to claim other benefits as per law. The Hon'ble Apex Court in the above cited decision referred to several decisions on the same lines to grant equitable remedy and the same can be granted to the petitioner in this case also without disturbing the acquisition proceedings. 16. In the present case, the notification under Section 15(1) of the Act has not been challenged and therefore, the question of setting aside the same does not arise. In view of the mistake pointed out by the petitioner and the error, which has been corrected by the respondents and taking cue from the decision of the Apex Court, this Court is of the view that the petitioner, who is yet to receive compensation can be given appropriate equitable remedy. The petitioner as undertaken by the learned counsel shall handover possession of the property on or before 30.9.2012. The petitioner as undertaken by the learned counsel shall handover possession of the property on or before 30.9.2012. The date 30.9.2012 for handing over possession (i.e.) will be reckoned as relevant date for the purpose of determining the market value/ price of the property insofar as the petitioner is concerned and compensation determined accordingly. It is open to the petitioner to hand over possession even earlier to the said date. The Court further directs the authority, who has already issued the notice under Sections 19(2) and (3), to determine the compensation for the acquired land on the basis of the market value as on 30.9.2012 instead of the date of issuance of notification under Section 15(1) of the Act. The respondents are agreeable to pass appropriate orders within four weeks from the date of handing over the possession of the property in terms of the order as above. The petitioner will file an affidavit of undertaking before this Court on 2.8.2012 to the effect that the petitioner will hand over possession on or before 30.9.2012. The respondents shall not disturb the petitioner's possession till 30.9.2012. However, if the petitioner vacates the premises earlier to the said date, the respondents are at liberty to proceed with the construction of the grade separator and other works without restraint. 17. This writ petition is ordered as above. Consequently, connected miscellaneous petitions are closed. No costs. " 9. The acquisition in the instant case if a part of the same property decided in W.P.No.30107 of 2010 for the very same project for construction of grade separator at the intersection of GNT Road at 8/6 km of Moolakadai. The petitioner is the son of the petitioner in the earlier case referred to above and the present petitioner appeared for himself and the mother and was therefore aware of the entire issue. The mistake that has crept in can be corrected. Taking note of the fact that the notification under Section 15(1) of the Tamil Nadu Highways Act, 2001 has not been challenged and the petitioner participated in the award proceedings, this Court is of the view that the petitioner will also be entitled to the same benefit as has been extended to the petitioner in W.P.No.30107 of 2010 who is none other than the mother of the present petitioner. The Collector, the competent authority shall pass a supplementary award and re-determine the compensation for 207 square meters of land and building that has been acquired by taking the market value/ price as on 30.09.2012 (i.e.) date on which the petitioner will hand over the possession of the property to the respondent. 10. The objection of the learned Advocate General that no supplementary award can be passed is rejected as the cause of action for filing the writ petition is due to the mistake committed by the authority and therefore, the award which is not in consonance with the original notice, necessarily has to be corrected. Therefore, the benefit of the order of this Court for the mistake committed by the respondent will have to be properly reworked and is accordingly ordered. 11.The writ petition is ordered as above. No costs. Consequently, the connected miscellaneous petition is closed.