?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 06/10/2010 *CORAM THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI +WP.13304 of 2010 #Mrs.Vasanthi $The Competent Authority !FOR PETITIONER : R.Krishnamoorthy ^FOR RESPONDENT : P.Subramanian :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.10.2010
Coram:
THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI W.P. No.13304 of 2010 Mrs.Vasanthi Swapna V.Shah .. Petitioners vs. 1.The Competent Authority & Special District, Revenue Officer (LA), National Highways, Kancheepuram & Thiruvallur District at Kancheepuram. 2.The General Manager, (Technical) & Project Director, National Highways Authority of India Annexe Building, SPIC House, No.88, Mount Road (Anna Salai) Chennai-2. 3.The Chairman, National Highways Authority of India G-5 and 6, Sector-10, Dwaraka, New Delhi-5. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Mandamus, to call for the records from the first respondent pertaining to NHA1/13018/132/2009/PIU Chennai/526 dated 19.03.2010 and to quash the same and to direct the respondents to pay the sanctioned amount of Rs.48,01,420/- to the petitioners for the demolition of super structure upon the land comprised in survey No.4315/1A bearing premises No.40, Mount Poonamallee High Road, Kathipara, Chennai-16.
For Petitioners : M/s.R.Krishnamoorthy, SC for Mr.S.Subramanian For R1 : Mr.P.Subramanian, AGP For R2 & R3 : Mr.P.Wilson, AAG. O R D E R On consent, the writ petition is taken up for final hearing at the admission stage.
2. The writ petition is filed against the order of the first respondent pertaining to NHA1/13018/132/2009/PIU, Chennai/526 dated 19.03.2010 to quash the same and to direct the respondents to pay the sanctioned sum of Rs.48,01,420/- for the demolition of superstructure bearing premises No.40, Mount Poonamallee High Road, Kathipara, Chennai-16 comprised in S.No.435/1A.
3. According to the petitioners, the land and the super structure upon the land did belong to the petitioners and they become the owners of the land by way of registered sale deed and after the purchase of the land, the petitioners put up super structure upon the same under due permission and approval and had been in possession and enjoyment of the same by letting it out to 3rd parties.
4. While so, the Government acquired both the land and the building for the purpose of grave separator at Kathipara Junction and the acquisition proceedings was completed after following all other formalities. Thereafter, the building was taken over by the appropriate authority and the building was demolished and the project was also completed. However, the dispute regarding the payment of compensation for the owners of the land and the building acquired is yet to see its finality. The petitioners have on the failure of the competent authority to pay any compensation to the land and building separately come forward with the writ petitions W.P.13302 and 13304 of 2010 for directing the respondents to pay the compensation in respect of the land and building respectively. While the payment of compensation for the land is denied on the ground that the petitioners are not the owners the payment of compensation for the building which is admittedly put up by the petitioner is also denied on the same ground.
6. Heard the rival submissions made on both sides.
7. The writ petition filed against the non payment of compensation for the land is separately being dealt with. The present writ petition is against the non payment of compensation to the building which is admittedly put up by the petitioners. The competent authority has in his proceedings dated 26.04.2010 fixed the compensation for the building at Rs.48,01,420/- and declared the petitioners herein to be entitled to get the same and drawn the cheque in their favour on 27.01.2010 and forwarded the same to the 2nd respondent which is the requisitioning body for its counter signature and approval. But, the 2nd respondent has returned the same on the ground that the land upon which the building is put up by the petitioners is time barred lease land and the building constructed upon the same has no legal validity and the petitioners should only be treated as encroachers of the Government Poramboke land and it is disentitled to get any compensation for the building also. The correctness of such order is now seriously challenged before this court. Thus the only controversy raised in this writ petition is as to whether the person who is the owner of the super structure is entitled to get the compensation pending dispute over the ownership of the land upon which the building is put up.
7. The learned senior counsel appearing for the petitioners has cited the judgment of the Supreme Court reported in 2003 (1) CTC 235 in Sharada Devi Vs. State of Bihar and others and the judgment of the Hon’ble Division Bench of our High Court following the Supreme Court Judgment reported in 2009 CIJ 857 Mad in District Collector, Salem and others Vs. Siddheswaran and another wherein the Supreme Court and Hon’ble Division Bench has dealt with identical issue. The observation of the Supreme Court and the Division Bench in the identical situation is extracted as below :
“32. In Secretary of State v. Sri Narain Khanna, AIR 1942 Pc 35 it was held that where the Government acquires and property consisting of land and buildings and where the land was subject-matter of the Government, grant, subject to the power of resumption by Government at any time on giving one month’s notice, then the compensation was payable only in respect of such buildings as may have been authorized to be errected and not in respect of the land.
33. In ‘In the matter of the Land Acquisition Act : Govt. of Bombay v. Esufali Salebhai’ 34 Bom 618 (at page 636), Batchelor, J held that the Government are not debarred form acquiring any paying for the only outstanding interests merely because the Act, which primarily contemplates all interests as held outside Government, directs that the entire compensation based upon the market value of the whole land must be distributed among the claimants. The Government was held liable to acquire and pay only for the super-structure as it was already the owner of the land”
11. The question is, whether the first respondent is entitled to any compensation. A portion of the building put up by the first respondent in the acquired land has been demolished and there was also trees in the land when it was acquired for laying the National Highway. In the decisions referred to by the learned senior counsel, especially in Sharad Devi’s case (supra), the Supreme Court makes the difference between compensation payble in respect of the land and in respect of the buildings and holds that where the Government is the owner of the land, payment of compensation must be only for the superstructure. Therefore, we do not think that the order of the learned single Judge requires any interference, but we clarify it and explain it in the following terms :
The first respondent is not entitled to compensation for the land acquired, since he is not the owner thereof. But, he may be heard on the question of compensation that is payable in respect of the building put up by him on the said land, for which he has also been paying property tax for several years and the like. After so hearing him, it is open to the authorities to pass appropriate orders in accordance with law.
8. The Supreme Court has held that even if the Government is the owner of the land compensation must be paid to the super structure and has accordingly up held the right of the owner of the super structure to get the compensation for the building in question.
9. That being the ratio laid down the order dated 19.03.2010 impugned herein in refusing to pay compensation for the building on the ground that the land belonging to the Government is legally unsustainable and is liable to be quashed.
10. In the result, the order of the 1st respondent dated 19.03.2010 is set aside and the respondents 1 and 2 are directed to pay the compensation of Rs.48,01,420/- due to the petitioners for the demolished premises bering No.40, Mount Poonamallee High Road, Kathipara, Chennai-16 comprised in S.No.435/1A subject to fulfillment of statutory formalities if any for receiving compensation within four weeks from the date of receipt of copy of this order. The petitioners are given liberty to approach the authority concerned, in so far as their claim against deduction of TDS.
11. The writ petition is allowed as prayed for. No costs.
06.10.2010
Internet : Yes/No
Index : Yes/No
tsh
K.B.K.VASUKI, J
tsh
1.The Competent Authority & Special District,
Revenue Officer (LA), National Highways,
Kancheepuram & Thiruvallur District at
Kancheepuram.
2.The General Manager,
(Technical) & Project Director,
National Highways Authority of India
Annexe Building, SPIC House,
No.88, Mount Road (Anna Salai)
Chennai-2.
3.The Chairman,
National Highways Authority of India
G-5 and 6, Sector-10,
Dwaraka, New Delhi-5.
W.P.No.13304 of 2010
06.10.2010