P. Pullaiyannan v. The District Collector,(Land Acquisition),Collector Office,Salem

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 16.06..2011CORAM:THE HONOURABLE MR. JUSTICE R.SUDHAKARW.P. No. 7693 of 2008.......P. Pullaiyannan.. Petitioner Vs.1.The District Collector,(Land Acquisition),Collector Office,Salem. 2. The Competent Authority, (Land Acquisition), NH 7 (Four laning), Salem.1.3. The Special District Revenue Officer, (Land Acquisition), NH 7, 46 Salem, Dharmapuri District, (Stay) Krishnagiri. ... RespondentsPrayer: Petition filed under Article 226 of the Constitution ofIndia to issue a Writ of Certiorarified Mandamus calling for therecords relating to the orders of the first respondent dated on22.1.2008 in Na.Ka.18443/2007 B2 and quash the same and direct thefirst respondent herein to fix the market value of petitioner'sproperty at Rs.150/- (with interest) per square feet by considering allsale deeds executed on or before the date of 3A notification andfurther direct the first respondent to hold proceedings before hispresence and to pass orders as per Sec.3G (7) of National Highways Act1956. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. M. Elango For Respondents : Ms. V.M.Velumani Spl. Govt. PleaderORDER This writ petition is filed to call for the records relatingto the orders of the first respondent dated on 22.1.2008 inNa.Ka.18443/2007 B2 and quash the same and direct the first respondentherein to fix the market value of petitioner's property at Rs.150/-(with interest) per square feet by considering all sale deeds executedon or before the date of 3A notification and further direct the firstrespondent to hold proceedings before his presence and to pass ordersas per Sec.3G (7) of National Highways Act 1956. 2. This writ petition is filed challenging the award of theArbitrator viz., District Collector. In a case of this nature, thisCourt would not have normally interfered with the award passed by theArbitrator/ District Collector in view of the specific provisions underthe National Highways Act and the Arbitration and Conciliation Act1986, which provides for an appeal to the High Court against the orderpassed by the Arbitrator/ District Collector. But in the peculiarfacts and circumstances of this case wherein the order passed bythis Court in the writ petition filed earlier has been breached by theauthority forcing this Court to interfere with the award on a limitedissue as hereunder.3. The brief facts are as follows:- The petitioner's land to an extent of 114 sq.meter comprisedin S.No.114/3A,2A,1A of Kottamettupatti Village, Omalur Taluk, SalemDistrict. The acquisition was made by issuing a notification underSection 3A(i) of the National Highways Act 1956 and the notificationwas published in the Government of India Gazette on 3.5.2002. Thenotification under Section 3(D)(i) of the Act was issued and publishedin the Government of India Gazette on 13.3.2003. The notificationunder Section 3G (iii) of the Act was published in Tamil daily viz.,'Dina Thanthi' and the English daily 'The Hindu' on 26.4.2003 and theaward was passed by the competent authority viz., Special DistrictRevenue Officer (Land Acquisition) National Highways, Krishnagiri on31.10.2003. The petitioner filed a petition before the Arbitrator,which was not disposed of and therefore, he filed a writ petition in WPNo. 8479 of 2006 and pursuant to the order passed by this Court , thefirst respondent/ District Collector/Arbitrator passed an award inNa.Ka.AAVA.No.186/B1, dated 15.2.2007. Before the Arbitrator, thepetitioner filed eight documents in support of his plea for highercompensation. Out of eight sale documents, seven documents are datedprior to the notification issued under Section 3 A(i) of the Act. The https://hcservices.ecourts.gov.in/hcservices/ documents are of the year 1986, 1990, 1997, 2000 and 2001. Afterconsidering the order of the competent authority, the objection filedby the petitioner and the documents relied upon by the petitioner, thefirst respondent passed an award confirming the order of the competentauthority and rejected the petitioner's claim for higher compensation.While doing so, the Arbitrator rejected the seven documents relied uponby the petitioner holding as follows:-" kDjhuuhy; rku;g;gpf;fg;gl;l Mtz';fs; midj;Jk; Vw;fdntepu;zak; bra;ag;gl;l 1/7/2001 Kj;y 30/6/2002 tiuapyhd fhyj;jpw;Fs;fpua';fs; gjpt[ bra;ag;glhjjhy; mit midj;Jk; cah;kjpg;gPL bra;a Vw;wMtz';fshf fUj ntz;oajpy;iy.@(i.e.) to state that the documents were not registered during theperiod 1.7.2001 to 30.6.2002 and therefore are not relevant forconsidering the claim for higher compensation. 4. Challenging the order of the Arbitrator, the petitionerfiled WP No. 11284 of 2007 and after hearing the petitioner as well asthe respondents, more particularly, the District Collector, who hadfiled the counter, the Court passed the following order:-" It is seen from the impugned order that thepetitioner has produced altogether eight documents in whichthe last document No.805/2003, dated 16.3.2003 is after thenotification under Section 3A of the Act, the other 7documents are relating to the period from 24.4.1997 to12.3.2001, wherein the properties were sold at Rs.699.40,107.64, 864/-, 22.63, 15155, 1020 respectively. However,the details are furnished either by the petitioner or by therespondents to show as to whether the said lands relating tothe said documents are adjacent to the petitioner's land ornot. It is argued by the learned counsel for the petitionerthat the lands covered under the said documents are adjacentto the petitioner's property. In view of the fact that the petitioner produced thedocuments to establish the market value prevailing prior tothe notification under Section 3A of the Act, as stipulatedin section 3G(7) of the Act, this Court is of the view thatthe said documents could have been taken into considerationby the first respondent to fix value of the petitioner'sproperty, which it has failed and no valid reasons assignedby the first respondent for not considering those documents,hence the impugned order is set aside, the matter is remandedback to the first respondent for fresh consideration. Thefirst respondent is directed to hear the petitioner and https://hcservices.ecourts.gov.in/hcservices/ consider the documents and pass orders afresh within a periodof eight weeks from the date of receipt of copy of thisorder."5. This order setting aside the award was accepted by theauthority and the matter was heard once again and the present impugnedaward in Na.Ka.No.18443/07/B2/ dated 22.1.2002 has been passed. Thearbitrator/ first respondent rejected the petitioner's plea forenhancement and confirmed the compensation fixed by the competentauthority. 6. The present writ petition has been filed by thepetitioner stating that the specific direction of this Court toconsider seven documents have been deliberately and knowingly ignoredby the first respondent by placing reliance on the report of theSpecial District Revenue Officer. The first respondent refused to gointo the merits of the seven documents furnished by the petitionerwithout any justification. This is contrary to the specific nature ofthe order passed by this Court and hence the impugned award is bad andsuffers from vice of arbitrariness and non application of mind.7. The petitioner further pleads that except making areference to those documents stating that they were considered, thereis nothing in the order to show that the authority has applied his mindto those documents in the light of the specific order passed by thisCourt in WP No. 11284 of 2007 dated 29.10.2007. 8. On notice, the first respondent has filed a counteraffidavit and the relevant portion of the counter affidavit i.e.paragraphs 9,10 and part of 11, reads as follows:-"( para-9.) Regarding para-7, aggrieved by theorders passed by the Arbitrator-cum-Collector, Salem in hisproceeding Roc.18443/2007/B2, dated 22.1.2008, the petitionerhad filed a writ petition in W.P.No. 11284/2007. ThisHonourable Court vide order dated 29.10.2007 directed thefirst respondent to hear the petitioner and consider thedocuments and pass order afresh within a period of eightweeks from the date of receipt of copy of the order. Asdirected by this Honourable Court, a fresh enquiry wasconducted on 21.1.2008 and the document produced by thepetitioner were perused and order was passed on 22.1.2008confirming the earlier order. Hence, it is not correct tosay that the direction of this Honourable Court, was notfollowed. 10. Regarding para 8, the direction of the order dated29.10.2007 passed by this Honourable Court inW.P.No.11284/2007 was followed and the order was passed by https://hcservices.ecourts.gov.in/hcservices/ the Arbitrator cum District Collector, Salem in hisproceeding Roc.18443/2007 (B2), dated 22.1.2008 as there wasno merit in the document produced by the petitioner. Thesale deeds produced by the petitioner were registered beforethe 3A Notification and not registered between the periodfrom 1.7.2001 to 30.6.2002. As there were suitable sales tofix the value of the land of the petitioner, the other landswere not considered. The value of the land under acquisitionwill be fixed only with reference to the guideline passed bythe Government and not by the individuals on his own choice. 11. Regarding para 9, in order to fix the marketvalue of the land under acquisition the sales statistics forthe period from 1.7.2001 to 30.6.2002 i.e. one year precedingto the publication of Section 3A(3) notification weregathered from the Sub-Registrar Office, Omalur Taluk, SalemDistrict. During the above period 110 sales were registeredrelating to Kottamettupatti Village, Omalur Taluk."9. Ms. V.M.Velumani, Special Government Pleader contendedthat the authorities have proceeded on the basis of the guidelines ofthe Government and therefore, the documents, which are one year priorto the notification issued under Section 3A(i) alone were consideredand the other documents were not considered. 10. The impugned order of the first respondent deserves tobe interfered with only on the ground that there has been a deliberateand conscious non application of mind coupled with total arbitrarinessin the approach. The specific directions of this Court has beenignored. If the authority had considered the seven documents asdirected by this Court, then there would not have been any reason forthis Court to interfere and the petitioner would be directed toapproach the appellate forum. But in this case, the first respondenthas simply referred to the report of the Special District RevenueOfficer (Land Acquisition) for not considering the documents. Theorder does not spell out the reason as to why the first respondentdoes not consider the documents filed by the petitioner. The firstrespondent has merely referred to the earlier order of this Courtdated 29.10.2007 in W.P.No.11284 of 2007 and the documents and statedthat the Special District Revenue Officer (Land Acquisition) hasreported that the documents referred to by the petitioner are notregistered during the period from 1.7.2001 to 30.6.2002 and hastherefore refused to consider it. This statement of the SpecialDistrict Revenue Officer (Land Acquisition) is found in the earlieraward dated 15.2.2007 and has already been extracted above and rejectedby the Court. On the contrary a specific direction was issued toconsider the seven documents. It is therefore, clear that thearbitrator has proceeded merely on the basis of the report of theSpecial District Revenue Officer (Land Acquisition), who has statedthat the documents registered between 1.7.2001 to 30.6.2002 alone can https://hcservices.ecourts.gov.in/hcservices/ be considered for determining the compensation over looking thespecific order of the Court passed in the earlier writ petitions. Thestand of the Special District Revenue Officer (Land Acquisition) wasearlier considered and rejected by this Court. A specific directionwas issued to consider all the documents more particularly, the sevendocuments furnished by the petitioner. That direction has not beenobeyed. Further more, the first respondent clearly accepts in theimpugned order that the Survey Numbers contained in the seven documentsfurnished by the petitioner are very close to the land of thepetitioner, which has been acquired. In the impugned order, it isstated that the properties relating to those documents were inspectedon 22.1.2008. But, there is nothing in the order to show that theseven documents were considered on merits as there is no discussions onit. There is not even a finding by the first respondent as to whetherhe accepts those documents or rejects the same. All that is stated inthe impugned order is the opinion of the Special District RevenueOfficer (Land Acquisition). It amounts to abdication of his function. 11. In the counter affidavit, guidelines of the Governmenthave been referred to and that is not mentioned in the impugned order.Section 3G(7) of the National Highways Act provides for determinationof the amount payable as compensation and it reads as follows:-3G(7) The competent authority or the arbitratorwhile determining the amount under sub-section (1) or sub-section (5), as the case may be shall take intoconsideration--(a) the market value of the land on the date ofpublication of the notification under section 3-A; (b) the damage, if any, sustained by the personinterested at the time of taking possession of the land, byreason of the severing of such land from other land;© the damage, if any, sustained by the person interestedat the time of taking possession of the land by reason of theacquisition injuriously affecting his other immovableproperty in any manner, or his earning;(d) if, in consequences of the acquisition of the land,the person interested is compelled to change his residence orplace of business, the reasonable expenses, if any,incidental to such change."12. Since the Act provides for determination of thecompensation on the basis of the market value of the land on the dateof publication of notification under Section 3 A, it is not clear as towhy the first respondent has failed to look into those seven documents,which are admittedly prior to the notification. Since there is aspecific direction by this Court in the earlier order and such orderwas accepted by the first respondent, the non consideration of the https://hcservices.ecourts.gov.in/hcservices/ seven documents clearly establishes the arbitrariness on the part ofthe first respondent and total non application of mind and therefore,the impugned proceedings deserves to be interfered. The statement inthe counter affidavit that the value of the land under acquisition willbe fixed only with reference to guidelines issued by the Government isan untenable stand as it will run contrary to the Act. The verypurpose of petitioner participating in the award enquiry will become anempty formality. The valuable right of the land owner cannot bedenied and buried in the name of guidelines, which apparently has nostatutory force and respondents have not established so. 13. In such view of the matter, since the authority hasfailed to comply with the direction of this Court passed in the earlierwrit petition and has failed to consider those documents inspite of thespecific direction issued therein, this Court is constrained to setaside the order and remand the matter to the first respondent toconsider the petitioner's claim in the light of the order passed bythis Court dated 29.10.2007 in W.P.No.11284 of 2007, which hasalready been extracted above. The authority is bound to pass areasoned order on all issues in terms of the direction issued by thisCourt referred to above. This writ petition is allowed by way ofremand. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.RegistrarraTo1.The District Collector,(Land Acquisition),Collector Office,Salem. 2. The Competent Authority, (Land Acquisition), NH 7 (Four laning), Salem.1. https://hcservices.ecourts.gov.in/hcservices/

3. The Special District Revenue Officer, (Land Acquisition), NH 7, 46 Salem, Dharmapuri District, (Stay) Krishnagiri. +1cc to Mr.M.Elango, Advocate Sr 34893+1cc to Govt. Pleader Sr 34977NM(CO)km/30.6.WP No.7693 of 2008