IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:9.9.2008
CORAM;
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI
W.P.NO.16577 OF 2008
and M.P.No.1 of 2008
K.G.Kothandapani Naidu ..Petitioner
vs
1.The District Collector
Kancheepuram District
Kancheepuram
2.The Member Secretary
Chennai Metropolitan Development Authority
Chennai 600 008
3.The Special Tahsildar
Maraimalai Nagar(Scheme)
Maraimalai Nagar
Kattankulathur ..Respondents
Writ Petition is filed under Article 226 of the Constitution of India for the issue of a writ of Certiorarified Mandamus to call for the records of the first respondent in Na.Ka.No.51241/2007/F2, dated 13-04-2008, quash the same and to pay the enhanced compensation of a sum of Rs.193.18 per cent as per the orders in L.A.O.P.No.98 of 1994 dated 06.09.1996 to the petitioner.
for petitioner : Mr.M.Rajasekhar
for respondents : Mr.A.Edwin Prabhakar
(for R1 and R3)
Mr.C.Kathiravan
(for R2-CMDA)
ORDER
The respondents have acquired in the year 1974 lands in Keelkaranai and other surrounding villages for developing Maraimalai Nagar Satellite New Town. The petitioner who has owned land at Keelkaranai bearing Survey No.163 measuring 4.66 cents, Survey No.160 measuring 0.73 cents, Survey No.158/1 measuring 0.19 cents in all totalling an extent of 5.58 cents were acquired by section 4(1) notification of the Land Acquisition Act,1894 (hereinafter referred to as `the Act’) issued on 16.10.1974 which contains all other lands which are included for the said scheme. Ultimately, an award came to be passed by the third respondent fixing Rs.30/- per cent in respect of the properties of the petitioner like other properties also. It is seen that one Ramadoss and his mother Lakshmikanthammal who have owned properties in S.Nos.155/3 and 56/2 in the same Keelkaranai Village whose properties were also acquired and the award passed fixing Rs.30/- per cent by the Tahsildar, have filed L.A.O.P.No.98/1994 on the file of the Additional Subordinate Judge, Chengalpet who by a final order dated 6.9.1996 has enhanced the compensation at the rate of Rs.193.18 per cent. It was after enhancement of the said compensation in respect of the said owner whose property stood adjacent to the property of the petitioner, the petitioner has made an application for re-determination of the amount of compensation under Section 28(A) of the Act and that representation was addressed to the second respondent who is the requisitioning authority. Between the date of enhancement of the award passed by the Sub-Court dated 6.9.1996 and the date of representation stated to have been made by the petitioner to the requisitioning authority, namely, 5.10.1996, the same is within a period of three months from the date of award of the Court.
2. However, the application which should have made to the first respondent-District Collector has been wrongly addressed to the second respondent, namely, the Chennai Metropolitan Development Authority. It is seen that the Chennai Metropolitan Development Authority who has received the said representation dated 5.10.1996 on 17.10.1996 as it is seen in the communication of the Tahsildar addressed to the Chennai Metropolitan Development Authority dated 19.2.1998 has chosen to forward the same to the Tahsildar-the third respondent on 19.2.1997 by keeping it with them for nearly four months. It was the third respondent-Tahsildar after realising that the authority to decide about the re-determination of compensation under section 28(A) of the Act is the Collector has in his turn forwarded it to the Collector on 20.3.1997 having kept with him for more than 40 days and in that process ultimately when the Collector has received the representation of the petitioner made under section 28(A) of the Act, it was on 20.3.1997 which was beyond three months period as permitted under section 28(A) of the Act. It was on that basis the Collector passed the impugned order rejecting the claim of the petitioner on the basis that under Section 28(A) of the Act such application for re-determination of compensation should have been filed within three months’ time from the date of the award passed by the competent Court under Section 18 of the Act enhancing the amount and in the present case, the representation has been filed on 20.3.1997 and in that view of the matter, rejected the claim of the petitioner as against which the present writ petition is filed.
3. A reference to Section 28(A) of the Act which is as follows,
“28A. Re-determination of the amount of compensation on the basis of the award of the Court:-
(1)Where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all other land covered by the same notification under Section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwith standing that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the Court:
Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.
(2)The Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving to all the persons interested and giving them a reasonable opportunity of being heard and make an award determining the amount of compensation payable to the applicants.”
makes it clear that in cases where larger extent of lands have been acquired and award came to be passed under Section 11 of the Act any person interested and aggrieved by the award of the Collector even though has not chosen to apply to the competent Court for the purpose of enhancement of compensation under Section 18 of the Act, he is entitled to apply to the Collector for re-determination of the amount of compensation on the basis that in respect of the adjacent properties which are covered under the same section 4(1) notification there has been enhancement of compensation and such application for re-determination can be made to the Collector within three months from the date of the award of the Court. By considering the said provision it is necessary to point out some of the relevant dates which are as follows:
(i)The enhanced compensation fixed in respect of neighbour land under section 18 of the Act and ultimately award passed increasing the compensation from Rs.30/- per cent to Rs.193.18 per cent – 6.9.1996
(ii)Application of the petitioner under Section 28(A) of the Act but addressed to the C.M.D.A. for re-determination – 5.10.1996.
(iii)The date of receipt of the said application by the Chennai Metropolitan Development Authority – 17.10.1996
(iv)The Chennai Metropolitan Development Authority forwarded the said application to the Tahsildar – 9.2.97
(v)The Tahsildar in his turn forwarded to the Collector – 20.3.1997.
The impugned order was passed by the Collector on 13.4.2008. A reference to the abvoesaid dates make it clear that of course the petitioner who is expected to make such application for re-determination to the Collector has made it to the second respondent-Chennai Metropolitan Development Authority which is a requisitioning authority for whose benefit or the scheme formulated by it the lands were acquired. The said representation made to the Chennai Metropolitan Development Authority is within a period of three months even if it is taken that the C.M.D.A. has received the said representation on 17.10.1996. The very fact that the Chennai Metropolitan Development Authority having received it and kept it for four months before referring to the Tahsildar and the Tahsildar in his turn after delay of 40 days sent it to the Collector makes it clear that if the second respondent has immediately returned the representation of the petitioner on receipt of the same 17.10.96, the petitioner would have presented the application to the Collector since by that time. The Chennai Metropolitan Development Authority has received the representation on 17.10.1996, there was still more than 45 days available to the petitioner to make application for re-determination. Therefore, it cannot be said that the second respondent and third respondent have no fault on their part. It is in view of the conduct of the second respondent who cannot be termed as a third party since it is the second respondent for whose benefit the acquisition was made and therefore, by the conduct of the second and third respondents the delay has been caused which has to be taken into account. Unfortunately, the Collector has failed to take these points into consideration even though the abovementioned facts are not disputed and in fact the same have been referred in the impugned order itself.
4. It is also relevant to point out that the factum of the Chennai Metropolitan Development Authority sending the representation of the petitioner dated 5.10.1996 to the Tahsildar on 19.2.1997 came to the knowledge of the petitioner only after the petitioner has approached the second respondent under the Right to Information Act and as the communication was received by him accordingly on 16.6.2008. It is also relevant to note that after receipt of the representation from the Tahsildar on 20.3.1997 the Collector himself has kept it pending for nearly 11 years.
5. In view of the same the impugned order of the first respondent dated 13.4.2008 is set aside and the first respondent is directed to take into consideration and pass appropriate orders regarding the re-determination of the amount of compensation in respect of the property of the petitioner based on the award passed in respect of the neighbour in L.A.O.P.No.98/1994 and such order shall be passed expeditiously, in any event, within a period of eight weeks from the date of receipt of the copy of this order.
6. The Writ Petition is disposed of accordingly. No costs. Consequently, M.P.No.1 of 2008 is also disposed of.
sal
To
1.The District Collector
Kancheepuram District
Kancheepuram
2.The Member Secretary
Chennai Metropolitan Development Authority
Chennai 600 008
3.The Special Tahsildar
Maraimalai Nagar(Scheme)
Maraimalai Nagar
Kattankulathur