BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02/08/2012
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.(MD)No.3497 of 2012
K.S.Sahadevaraja ... Petitioner
Vs.
1.The Commissioner,
Rajapalayam Municipality,
Rajapalayam.
2.The Director,
Town and Country Planning Department,
Chennai.
3.The State of Tamil Nadu,
rep. by its Chief Secretary,
Secretariat,
St. George Fort,
Chennai - 9.
4.The District Collector,
Virudhunagar District.
(R3 & R4 impleaded as party
respondents vide order dated
27.06.2012 in M.P.No.1 of 2012)... Respondents
Prayer
Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus, forbearing the respondents from entering upon the land bearing Town Survey No.52 (old) new 110, Malayadipatti in Block No.7 and Ward-H of Rajapalayam Municipality.
!For Petitioner ... Mr.G.Prabhu Rajadurai
^For Respondents... Mr.P.Srinivas for R1
Mr.B.Pugalenthi, Spl.G.P.
for R2 to R4
:ORDER
******
The petitioner has filed this writ petition, seeking for issuance of a Writ of Mandamus, forbearing the respondents from entering upon the land bearing Town Survey No.52 (old) new 110, Malayadipatti in Block No.7 and Ward-H of Rajapalayam Municipality and pass such further or other orders as this Court may deem fit and proper and render justice.
2.The facts leading to the filing of this writ petition are as follows:
(a) The property referred to above originally belonged to the father of the petitioner and after his death, the said property was inherited by petitioner and five brothers and they are the joint owners of the said property.
(b)The brother of the petitioner Tr.K.S.Bheemaraja applied for permission to construct a building in the aforesaid property during 1987. His request was rejected by the Commissioner of Rajapalayam Municipality on 11.11.1987 on the ground that the proposed site is in 4o Ft C.C. Road and also on other grounds. Thereupon, he filed appeal before the Director of Town and Country planning, Chennai. The Director rejected the appeal on the very same reasons given by the Commissioner.
(c)In the said circumstances, the petitioner filed a writ petition in W.P.(MD) No.14926 of 1988 for issuance of a writ of declaration, declaring that G.O.Ms.No.2041, Health, Education and Local Administration Department, dated 18.06.1959 and the Town Planning scheme notified therein is void, illegal, inoperative and abandoned.
(d)The Municipality filed a counter affidavit contending that the site in question falls within the scheme road and the Municipality spent about Rs.8 lakhs for development of the scheme. The Municipality further averred that the Municipality has every right to acquire the land in question. In the said circumstances, the writ petition in W.P.No.14926 of 1988 was dismissed by this Court on 05.04.1990. Thereafter, the brother of the petitioner preferred writ appeal in W.A.No.1036 of 1990 and the writ appeal was also dismissed by this Court on 07.11.1990.
(e)The petitioner made several representations to the Municipality to acquire the land and also expressed the desire to sell the land by direct negotiation. But, the Municipality did not take any action. Since the Municipality neither permitted the petitioner and his family members to put up construction nor acquired the property, the petitioner has filed the present writ petition as he has no other option.
3.The first respondent Municipality filed counter affidavit refuting the allegations. It is averred that in view of the dismissal of W.P.No.14926 of 1988 and W.A.No.1036 of 1990 preferred by the brother of the petitioner, this writ petition is also liable to be rejected. It is also averred that at the time of sanctioning of the scheme in G.O.Ms.No.2041, the owner of the land was one N.A.P.Alagiriraja and Arjunaraja and on the request of the land owner, the alignment of the road was slightly changed. That is, the ownership claimed by the petitioner on the property is disputed. It is further averred that the Municipality had laid a B.T.Road as early as in 1989 and provided street lights also and at present, the land is used as public road. The Municipality also has averred that several houses have been developed on both sides of the scheme road and the scheme road alone is available for assess to their properties. The Municipality prayed for the dismissal of the writ petition.
4.Heard both sides.
5.(a).The learned counsel for the petitioner submits that though he prayed for Mandamus to forbear the respondents from entering upon the land in issue, the consistent plea of the petitioner is to acquire the land as per law and the petitioner is always willing for direct negotiation also and therefore, he prays for suitable direction to the respondent Municipality to take acquisition proceeding and to compensate the interested persons under the land acquisition Act.
(b)The learned counsel for the petitioner has relied on a series of orders passed in W.P.(MD) N0.5614 of 2006, by this Court in similar circumstances. He has prayed for similar order in this case.
(c)The learned counsel has also taken me through the entire judgment of this Court in W.P.(MD) No.14926 of 1988 relied on by the Municipality and submits that the aforesaid judgment is in favour of the petitioner. According to him, this Court recorded the submission of the learned counsel for the Municipality that the Municipality has right to acquire the land in issue for the purpose of the scheme road. Since the Municipality has not taken steps to acquire the land, the petitioner was forced to come before this Court.
(d)He has further contended that the issue as to the ownership was also taken note of by the judgment referred to above and he has explained as to how the petitioner and his brothers are the owners of the property in issue.
(e)He has submitted that if the acquisition is made under the Land Acquisition Act, 1894, the interested persons could make their objections, if any, and the acquisition and compensation could be decided accordingly. According to him, the petitioner and the family members are only interested in compensation and they are not opposed to acquisition.
6.On the other land, the learned counsel for the Municipality has made submissions based on the counter affidavit.
7.I have considered the submissions made on either side.
8.The brother of the petitioner applied for permission to construct a building on the property during 1987. His request was rejected by a Commissioner of Rajapalayam Municipality on 11.11.1987, on the ground that the proposed site comes under the scheme road.
9.The Government issued G.O.Ms.NO.2041, Health, Education and Local Administration dated 18.06.1959, sanctioning the scheme road. The same was published in the gazette on 30.03.1960.
10.Hence, the petitioner filed W.P.No.14926 of 1988, seeking to declare G.O.Ms.No.2041 and the Town Planning scheme notified therein is void, illegal, inoperative and abandoned. According to the petitioner in W.P.No.14926 of 1988, the land comes under the notified scheme shall be acquired within three years from the date of notification and if it is not done, the notification of G.O.Ms.No.2041 is of no effect, as per Section 34 of the Madras Town Planning Act, 1920. Hence, declaration was sought for as stated above.
11.But, this Court dismissed the writ petition in W.P.No.14926 of 1988 on 05.04.1990, holding that there is no bar for the Municipality to acquire the land under the provisions of the Land Acquisition Act. It is also held that the Tamil Nadu Town and Country Planning Act, 1972, replaced the earlier Act referred to above and the notification issued under the earlier Act shall continue to be in force, until it is superseded by any action taken under the later Act. This Court also held that the Municipality spent Rs.8 lakhs for development of the scheme and that the site in respect of which the writ petitioner applied for building license falls within the scheme road.
12.As far as the ownership of the land in issue is concerned, the brother of the petitioner filed a reply affidavit in W.P.No.14926 of 1988, explaining as to how his family came into possession of the land in issue. The averment of the reply affidavit is extracted in the judgment in W.P.No.14926 of 1988. The following passages from the judgment is extracted in this regard:
"The site in question originally belonged to Duraivenkata Raja who had three sons, including his father. After the death of his grandfather, all the properties were in the possession and enjoyment of his eldest uncle Arjuna Raja. On 7.9.1982, there was a partition between Duraivenkata Raja and his three sons by means of a document. The area in question was allotted to his father who had 6 sons and 2 daughters.
13.Therefore, I am of the view that the petitioner has prima facie established that he is an interested person over the property in issue. Therefore, I am of the view that he is entitled to file the writ petition. Therefore, the submission made by the learned counsel for the Municipality that the writ is not maintainable on the ground that the petitioner s not the owner of the property has no merits. In any event, the petitioner has not opposed the acquisition of the land in issue and he sought for compensation for taking over the same, in accordance with law.
14.The following passages from the judgment dated 05.04.1990 in W.P.No.14926 of 1988 are extracted hereunder:
"The reason for rejecting the petitioners building application is that he proposed construction is on the land left for the scheme road itself, and if it is approved, it will block the entire stretch of the 40 ft. wide road. According to the second respondent, the Municipality has already implemented the scheme and made all kinds of improvements by spending more than Rs.8 lakhs. The Municipality has every right to acquire the land under the land Acquisition Act. ............
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It is clear from Section 34 of the earlier Act that a notification under Section 14 shall not withstanding anything contained in the Land Acquisition Act, 1894, operate in respect of any land for the purposes of the scheme as a declaration under Section 6 of the Act and that no further declaration is necessary. But if the land is not acquired within three years from the date of the notification, it shall cease to have effect as a declaration under Section 6 of the Land Acquisition Act, 1894. But, as rightly observed by the learned counsel appearing for the second respondent Municipality, there is no bar for the Municipality to acquire the land under the provisions of the Land Acquisition Act, after complying with the formalities provided under the Act including Section 4(1) and Section 5(a) enquiry and also the declaration under Section 6 of the Act. The proposition is not in dispute. ............
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It is seen from the counter affidavit that the site in respect of which the writ petitioner applied for building licence falls within the scheme road and that the area is industrial area.
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The 2nd respondent without collecting development charges, which every municipality is entitled to collect, spent Rs.8 lakhs for development of scheme. Various developments such as construction of storm water drains because of sloppy surface of the ground, culverts wherever necessary and formation of 60 feet wide road and 40 feet wide road have been made. The development in the scheme area is taking place according to the financial position of the Municipality. The alignment of the road was made considering all the existing state of affairs on ground and on the representations by the public and also to suit the straight alignment of the C.C. road. such variation has been published in the government gazette and newspapers. The persons who have put up unauthorised construction were also prosecuted and they were also convicted. In the fact of the counter affidavit and the reply counter affidavit filed by the Municipality, it cannot be said that the scheme is only in paper and that no development was made in pursuance of the said notification. The petitioner has now applied for licence for putting up construction on the very road which is under notification with regard to the scheme framed by the said Municipality under the Town Planning Act.
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The petitioner has not made out any case for holding that the impugned notification under G.O.2041, Health, Education and Local Administration Department dated 18.06.1959 and the Town Planning Scheme notified there is either illegal or void or inoperative or abandoned so as to warrant this Court to exercise the writ jurisdiction and issue a writ of declaration as prayed for."
15.The aforesaid passages from the judgment of this Court in W.P.No.14926 of 1988 makes it very clear that the concerned land in issue has been taken over by the Municipality and has been under its possession and enjoyment. But, admittedly, no acquisition has taken place as per law. Without acquiring the land as per the Land Acquisition Act, 1894, the Municipality has taken over possession of the land and has also put up road as admitted by the Municipality. The action of the Municipality is perse illegal and the same is violative of Article 300(A) of the Constitution of India.
16.In similar circumstances, when the lands were taken over for the purpose of construction of a Government Engineering College at Tirunelveli, without resorting to acquisition proceedings, the concerned person filed W.P.(MD) No.5614 of 2006, praying for issuance of writ in the nature of Mandamus, directing the District Collector, Tirunelveli and other Government authorities to handover the concerned land, that was taken over for construction of the Engineering College to the petitioner.
17.This Court passed the following order in W.P.(MD) No.5614 of 2006 on 09.02.2011.
"When this writ petition came up on 09.01.2011, I have directed the District Collector, Tirunelveli to consider the issue regarding payment of compensation to the petitioner so as to enable the Government Engineering College, Tirunelveli to retain the land owned by the petitioner. Accordingly, the District Collector has filed a report as well as a calculation sheet indicating the value of the land at Rs.1,46,35,641/-. The District Collector seeks time till 30th June 2011 for making payment.
2.The petitioner is prepared to receive the amount.
3.The requests of the petitioner and the fifth respondent are only to receive payment as they have no intention to take back the land from the Engineering College. Admittedly, the Engineering College is functioning in the subject premises. Therefore, it is in the interest of the administration to retain the land and to pay the compensation to the land owners. Now that the District Collector himself has arrived at the compensation, there is no difficulty to dispose of the writ petition. The District Collector Seeks time till 30th June, 2011 for settlement. Therefore, the first respondent/District Collector is directed to take all possible efforts to pay the compensation on or before 30th June, 2011."
Thereafter, the petitioner filed contempt petition in C.P.(MD) No.724 of 2011 complaining that the order dated 09.02.2011 was not complied with. This Court, passed an order dated 19.12.2011 in Cont. P(MD) No.724 of 2011. The operative portion of the said order is extracted hereunder:
"Para 6.On 30.11.2011, when the contempt petition came up for hearing, I directed the learned Government Advocate to take notice and get instructions. After a couple of hearing, Mr.K..P.Krishnadoss, learned Government Advocate submitted that the Collector has already addressed a letter to the Government for passing appropriate orders for the payment of compensation. Since it was taking time, I directed the learned Additional Advocate General to take take up the matter with the Government. Accordingly, the learned Additional Advocate General sent a letter to the Government. In response, the Joint Secretary to Government, Higher Education Department has sent D.O.Letter No.9194/B2/2011-5 dated 14.12.2011, stating that a report had already been called for from the Principal Secretary/Commissioner of Land Administration and that the Commissioner had already requested the Collector to furnish particulars. The Joint Secretary to Government has also stated that action was being taken on a war-footing. In the light of the said letter, the learned Additional Advocate General submitted that appropriate orders will be passed within eight weeks.
Para 7.In view of the above statement made by the learned Additional Advocate General the contempt petition is disposed of, directing the Secretary to Government, Higher Education Department to pass appropriate orders, for payment of the compensation amount together with interest upto the date of actual release of the payment. The Secretary to Government, Higher Education Department, shall pass orders, within a period of eight weeks from the date of receipt of a copy of this order.
I had also passed another order on 22.06.2012 in W.P.(MD) No.5614 of 2006 and the same is also extracted hereunder:
"The petitioner is the owner of the land in S.No.449/2, Keezhaveeraraghavapuram Village, Tirunelveli District to an extent of 3 acres. According to the petitioner, the same was taken over by the respondents 1 to 4 without any acquisition process. Hence, she has filed the present writ petition seeking for a direction to the respondents 1 to 4 to hand over the land.
2.Admittedly, the lands were taken over and the Government Engineering College has already come in the year 1982 itself. In these circumstances, this Court directed the District Collector, Tirunelveli to file a report about the value of the land that was taken over. Based on the report submitted by the District Collector, this Court passed an order, dated 09.02.2011 directing the first respondent, District Collector, to take all possible efforts to pay the compensation on or before 30.06.2011. It is relevant to note that this Court has recorded that the compensation was arrived at by the District Collector himself to the tune of Rs.1,46,35,641/- at the rate of Rs.7060/- per cent as per the decision, dated 24.08.2009, a Division Bench of this Court in A.S.No.456 to 460 of 2004.
3.Since the order was not complied with and no compensation was paid before 30.06.2011 as directed by this Court, Contempt Petition (MD)No.724 of 2011 was filed. The Contempt Petition (MD)No.724 of 2011 was disposed of on 19.12.2011 based on the statement made by the learned Additional Advocate General. The penultimate paragraph Nos. 6 and 7 in the said order, dated 19.12.2011 are extracted hereunder:
"6.On 30.11.2011, when the contempt petition came up for hearing, I directed the learned Government Advocate to take notice and get instructions. After a couple of hearings, Mr.K.P.Krishnadoss, learned Government Advocate submitted that the Collector has already addressed a letter to the Government for passing appropriate orders for the payment of compensation. Since it was taking time, I directed the learned Additional Advocate General to take up the matter with the Government. Accordingly, the learned Additional Advocate General sent a letter to the Government. In response, the Joint Secretary to Government, Higher Education Department has sent D.O Letter No.9194/B2/2011-5, dated 14.12.2011, stating that a report had already been called for from the Principal Secretary/Commissioner of Land Administration and that the Commissioner had already requested the Collector to furnish particulars. The Joint Secretary to Government has also stated that action was being taken on a war-footing. In the light of the said letter, the learned Additional Advocate General submitted that appropriate orders will be passed within eight weeks.
7.In view of the above statement made by the learned Additional Advocate General, the contempt petition is disposed of, directing the Secretary to Government, Higher Education Department to pass appropriate orders, for payment of the compensation amount together with interest upto the date of actual release of the payment. The Secretary to Government, Higher Education Department, shall pass orders, within a period of eight weeks from the date of receipt of a copy of this order".
4.Admittedly, eight weeks time granted by this Court have elapsed but nothing has been done. In these circumstances, this Court expressed that the action of the respondents is nothing but committing contempt of the order referred to above. In these circumstances, an affidavit is filed by the Additional Chief Secretary to Government, Higher Education Department, dated 21.06.2012. In the affidavit, they have sought for grant of eight more weeks' time to comply with the order referred to above.
5.In view of the aforesaid facts, I am not inclined to grant eight weeks since, this Court already directed to pay compensation on or before 30.06.2011. Thereafter, the time was extended further in the order dated 19.12.2011 referred to above.
6.Suo motu, Secretary to Government, Higher Education Department is impleaded as party to this writ petition.
7.In these circumstances, the affidavit filed by the Additional Chief Secretary to Government, Higher Education Department, dated 21.06.2012 is taken on record and a direction is issued to pay the amount of compensation as per the order dated 19.12.2011 in Contempt Petition (MD)No.724 of 2011 on or before 31.07.2012. Otherwise, the Secretary to Government, Higher Education Department, and the District Collector, Tirunelveli District, shall appear before this Court in person and explain as to why the order, dated 19.12.2011 in Contempt Petition No.724 of 2011 has not been complied with."
18.In my view, this case is also of the similar nature, as that of the W.P.(MD) No.56145 of 2006. Hence, the respondents 3 and 4 are directed to take proceedings under Land Acquisition Act, 1894, to acquire the land in issue, within a period of 6 months from the date of receipt of a copy of this order. If the land is acquired, the petitioner being an interested person would stake his claim for compensation.
19.The writ petition is disposed of in the above terms. No costs.
ARUL
To
1.The Commissioner,
Rajapalayam Municipality,
Rajapalayam.
2.The Director,
Town and Country Planning Department,
Chennai.
3.The Chief Secretary,
State of Tamil Nadu,
Secretariat,
St. George Fort,
Chennai - 9.
4.The District Collector,