C.S.Subbulakshmi v. The State of Tamil Nadu,Rep. District Collector,Erode District,Erode

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 04.08.2011CORAMTHE HONOURABLE MR.JUSTICE N.KIRUBAKARANW.P.No.19386 of 2009Chennimalai Gounder @ Chenniappa Gounder (decased)C.S.Subbulakshmi (Petitioner substituted as LR's in the place of the deceased petitioner vide court order dated 07.04.2011 in M.P.No.1 of 2011 in W.P.No.19386 of 2009) .. PetitionerVs.1.The State of Tamil Nadu,Rep. District Collector,Erode District, Erode.2.Revenue Divisional Officer,Erode.3.The Special Tahsildar (I.A)Land Acquisition,Erode Neighbourhood Scheme,Erode.4.The Executor Engineer,Erode Housing Unit,Erode. .. RespondentsPrayer : This Writ Petition filed under Article 226 of theConstitution of India for the issuance of a Writ of CertiorarifiedMandamus directing to call for the records pertaining to the orderdated 06.04.2009 passed by second respondent and quash the same anddirect the first respondent herein to enhance the compensation amountto Rs.6/- per square feet regarding petitioner' in consonance withthe award passed by the Tribunal / I Additional Sub Judge Erode inL.A.O.P.No.5/89 dated 06.04.2005.For Petitioner : Mr.M.GuruprasadFor respondents 1 to 3 : Mr.K.V.Dhanapalan, AGP.,For respondent - 4 : Mr.D.Veerasekaran https://hcservices.ecourts.gov.in/hcservices/ ORDERThe petitioner has filed this writ petition, challenging theorder passed by the second respondent / Revenue Divisional Officerunder Section 28-A of the Land Acquisition Act (in short "the Act")refusing, to re-determine the compensation. 2. The case of the original petitioner is that he owned landsmeasuring an extent of 0.54.5 Hectares in R.S.No.517/5 of PeriyaSemur Village and the same was acquired by the respondents 2 and 3for the purpose of constructing houses. The acquisition proceedingswas unsuccessfully challenged upto the Hon'ble Supreme Court.Therefore, the acquisition proceedings attained finality.3. As far as the compensation is concerned, Rs.33,964/- per acrewas determined by the third respondent, by virtue of an order dated23.09.1986. In respect of neighbouring property comprised inR.S.No.523/1 and 523/2, which was also covered under the sameLand Acquisition Act, an award was passed by the SpecialTahsildar. A reference under Section 18(1) of the Land AcquisitionAct was made by the owners of the said land before the FirstAdditional Sub Court, Erode in L.A.O.P.No.5 of 1989 and the saidCourt after contest enhanced the award amount from Rs.33,964/-. peracre. to Rs.6/- per sq.ft by decree dated 06.04.2005. 4. In view of the change of circumstances, on 30.06.2005, theoriginal writ petitioner filed an application before the firstrespondent under Section 28-A of the Act to re-determine of the awardamount payable to the land owners, in consonance with the awardpassed in a L.A.O.P.No.5 of 1989, which was passed at the instance ofthe neighbouring land owners. 5. However, due to some typographical error in the applicationdated 30.06.2005 S.No.517/5 was wrongly given as R.S.No.517/4instead of 517/5 and the same was sought to be rectified and theextent was also wrongly shown as 0.50.0 instead of 0.54.5 Hectares.The said rectification application was filed on 16.04.2007. Pursuantto the direction, issued by this Court, in Writ Petition No.4438 of2009, the impugned order was passed on 06.04.2009 rejecting thepetitioner's claim made under Section 28-A of the Act stating thatthe land comprised in S.No.517/4 is not the subject matter of theacquisition and it does not belong to the writ petitioner. The saidorder is challenged before this Court. Pending disposal of the writ,the original writ petitioner died and his *daughter was brought onrecord as legal heir *of him. https://hcservices.ecourts.gov.in/hcservices/

6. The learned counsel for the petitioner submitted that due totypographical error a wrong extent and wrong survey number were givenin the application under Section 28-A and subsequently, arectification petition was also filed and without considering thesaid rectification petition, the second respondent passed therejection order dated 06.04.2009. He relied upon a judgment of theJharkhand, High Court in Raghu Sao and others Vs. Union of India andothers reported in AIR 2006 Jharkhand 70.7. Heard the learned counsel for the petitioner and the learnedcounsel for the respondents and perused the records.8. There is no dispute with regard to the acquisition of thepetitioner's property. A perusal of the award, dated 23.09.1986,would show that the petitioner's property, measuring an extent of0.54.5 Hectares comprised in S.No.517/5 was acquired and Section 4(1)notification, dated 29.07.1981, and the third respondent awarded asum of Rs.33,964/- per acre. However, the very same award, dated23.09.1986, also covered a neighbouring land comprised inR.S.No.523/1 and 523/2, belonging to one Gurusamy Gounder, which wasalso covered by the same notification. The said Gurusamy Gounderfiled reference under Section 18 of the Land Acquisition Act beforethe Civil Court for enhancement and a decree was passed by the FirstAdditional Sub Court, Erode under Section 18(1) of the Act,enhancing the compensation and fixing the compensation at Rs.6/- persq.ft instead of Rs.33,964/- per acre. Therefore, the petitionergave a petition under Section 28-A of the Land Acquisition Act forre-determination. Section 28-A of the Land Acquisition Act reads asfollows:-" 28-A. Re-determination of the amount ofcompensation on the basis of the award of theCourt (1) Where in an award under this Part, theCourt allows to the applicant any amount ofcompensation in excess of the amount awarded bythe Collector under section 11, the personsinterested in all the other land covered by thesame notification under section 4, sub-section(1) and who are also aggrieved by the award ofthe Collector, may, notwithstanding that they hadnot made an application to the Collector undersection 18, by written application to theCollector within three months from the date ofthe award of the Court require that the amount ofcompensation payable to them may be re-determinedon the basis of the amount of compensationawarded by the Court: https://hcservices.ecourts.gov.in/hcservices/ Provided that in computing the period ofthree months within which an application to theCollector shall be made under this subsection,the day on which the award was pronounced and thetime requisite for obtaining a copy of the awardshall be excluded.(2) The Collector shall, on receipt of anapplication under sub-section (1), conduct aninquiry after giving notice to all the personsinterested and giving them a reasonableopportunity of being heard and make an awarddetermining the amount of compensation payable tothe applicants.(3) Any person who has not accepted theaward under sub-section (2) may, by writtenapplication to the Collector, require that thematter, be referred by the Collector for thedetermination of the Court and the provisions ofsections 18 to 28 shall, so far as may be, applyto such reference as they apply to a referenceunder section 18." 9. Hon'ble Chief Justice M.Yusuf Eqbal delivered the judgment inJharkhand High Court in Raghu Sao and others Vs. Union of India andothers reported in AIR 2006 Jharkhand 70, wherein his Lordshipclearly held that Section 28-A was incorporated in the Act to givethe same benefits to poor people who by reason of their poverty andignorance failed to apply for reference to the Civil Court.Paragraphs 4,5 and 6, reads as follows: " 4. From bare perusal of the aforesaidprovision, it is manifestly clear that thepersons whose lands have been acquired by thesame notification under Section 4 of the Act andwho are aggrieved by the award of the Collectormay approach the court for re-determination ofthe compensation on the basis of the award passedby Land Acquisition Judge in favour of otherpersons whose lands have been acquired by thesame notification. The only condition put in thesaid section is that persons who seek benefits ofSection 28A of the Act must not have made anapplication to the Collector under Section 18 ofthe Act.5. Section 28A of the Act has been insertedin the Act with sole object to give same benefitsto the poor people who by reason of their poverty https://hcservices.ecourts.gov.in/hcservices/ and ignorance have failed to take advantage ofthe right of reference to the Civil Court underSection 18 of the Act.6. In the instant case, as noticed above,the Land Acquisition Judge in his order dated20.06.2005 has held that no valid reference underSection 18 of the Act was made on behalf of thesepetitioners and, therefore, their petitions wererejected as not maintainable. In my opinion,therefore, benefit of Section 28A is alsoavailable to those persons whose petition underSection 18 has not been considered by the LandAcquisition Judge on the ground inter alia thatno valid reference was made by the Collector.Admittedly, by the same notification chunk oflands belonging to different persons includingpetitioners have been acquired. The compensationamount determined by the Collector has beenenhanced by the Land Acquisition Judge in favourof those persons on whose behalf valid referenceswere made. Petitioners have been deprived ofthe same compensation because of the fact thatthe application of these petitioners were notvalidly referred by the Collector. In suchsituation, in my considered opinion, thecollector is bound to consider the case of thepetitioners under Section 28A of the Act and re-determine the compensation in the light of theAward passed by the Land Acquisition Judge."10. The above judgment squarely applies to this case. In thepresent case, a similarly placed person as that of the petitioneri.e., Gurusamy Gounder, was awarded enhanced compensation as per theaward passed in L.A.O.P.No.5 of 1989. Lands of both the persons arecovered by same notification and award. Therefore what has beengiven to Gurusamy Gounder should be given to the petitioner.11. As far as the rejection on the ground that wrong surveynumbers and extents are concerned, it was specifically stated by thepetitioner in the amended petition that the extent was wronglymentioned as 0.50.0 instead of 0.54.5 Hectres and the survey numberas 517/4 instead of 517/5. The impugned order passed by the secondrespondent, dated 06.04.2009, would show that the land acquired fromthe petitioner is to the extent of 0.54.5 comprised in S.No.517/5.More over the award dated 23.09.1986 also speaks about the aforesaidpetitioner's property. Therefore, the second respondent admittedabout the extent and survey number of the property. When that is theposition, the second respondent should have allowed the petitioner'sclaim, considering rectification petition which gives the correct https://hcservices.ecourts.gov.in/hcservices/ extent and survey number and should not have rejected on the abovesaid grounds. 12. In view of the facts supported by records, the impugnedorder is not sustainable and the same is quashed and the respondentsare directed to enhance the compensation amount of Rs.6/- per sq.ftin respect of the land acquired from the petitioner viz 0.50.0Hectares comprised in S.No.517/5 in consonance with the award passedin LAOP.No.5/1989, on 06.04.2005, on the file of First Additional SubJudge, Erode and pay the same to the petitioner within a period oftwelve weeks from the date of receipt of a copy of this order.13. With the above direction, this writ petition is allowed. Nocosts.Sd/-Asst. Registrar21.10.2011*Corrected as per order of this Court dt.10.11.2011in W.P.No.19386 of 2009sd/-Assistant Registrar24.11.2011/true copy/Sub Asst. Registrar.adlTo1.The District Collector, The State of Tamil Nadu,Erode District, Erode.2.The Revenue Divisional Officer,To be substituted the order Erode.already despatched on 2.11.20113.The Special Tahsildar (I.A)Land Acquisition,Erode Neighbourhood Scheme,Erode. https://hcservices.ecourts.gov.in/hcservices/

4.The Executor Engineer,Erode Housing Unit,Erode.1 cc to The Govt. Pleader, SR 480101 cc To Mr.M.Guruprasad, Advocate Sr *68384W.P.No.19386 of 2009trm[co]gp/28.10SRA(28/11/2011)