High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 12-01-2007CORAMTHE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIANWRIT PETITION No.18667 of 2006D.Kannan .. Petitioner Vs.1.The Director of Planning, National Highways Authority of India, No.6(Old No.44), I Floor, 3rd Main Road, Pon Nagar, Tiruchirappalli-620 001.2.The Competent Authority, (Land Administration), National Highways 45, and District Revenue Officer, Villupuram District.3.The Special Tahsildar, Land Acquisition, No.22, Rajagopal Pillai Street, 4 Lane National Highway No.45, Tindivanam.4.Indirani Ammal.. Respondents5.Vijaya Ammal(RR.4 and 5 impleaded as per order of the Court dt.13.7.2006 in MP No.1 of 2006) Writ petition filed under Article 226 of Constitution of Indiapraying for issue of a Writ of Mandamus, directing the respondents hereinto disburse the compensation amount due to the lands acquired from thepetitioner as per the Award made in Na.Ka.A.020/2003/NH45/Tindi. Dated18.3.2006. For Petitioner : Mr.T.R.Rajagopalan, Senior Counsel for Mr.T.R.Rajaraman https://hcservices.ecourts.gov.in/hcservices/ For Respondents-1&2 : Mr.P.Wilson, Asst. Solicitor General. For Respondent-3: Mr.V.Arun, Government Advocate. For Respondents-4&5 : Mr.R.Subramaniam ORDERThe petitioner claims to be the owner of the lands of the extentof 2760 sq. metres in T.S.No.10/18-B, 600 sq. metres in T.S.No.10/19 and233 sq. meters in T.S.No.10/22-A, in Kidangal Village, Tindivanam Taluk,Villupuram District. He claims to have purchased the said lands undervarious sale deeds dated 20.12.1990, 22.6.1992, 15.11.1994, 17.11.1994,25.11.1994 and 21.8.1996. The petitioner was also issued with patta by theZonal Deputy Tahsildar, Tindivanam in his proceedings RTR A6/133/2004dated --.2.2004.2. By a notification published in the Gazette of India No.858S.O.1162(E) dated 24.11.2001, the Government of India appointed theDistrict Revenue Officer, Villupuram, as the Competent Authority underSection 3(a) of the National Highways Act, 1956 (hereinafter called as the'Act') for the purpose of acquiring lands for laying a bye pass road inNational Highway No.45. The draft notification under Section 3A of the Actwas approved by the Government in Government of India Gazette(Extraordinary) No.531 S.O.685(E) dated 14.6.2004 and the substance of thenotification was also published in Tamil and English Dailies in accordancewith Section 3A(3) of the Act. Objections were considered and afterfollowing the subsequent steps prescribed by the Act, the secondrespondent passed an Award on 18.3.2006, determining the compensationpayable.3. In the meantime, the respondents 4 and 5 herein filed a suitin O.S.No.417 of 2005 on the file of the Principal District Munsif Court,Tindivanam, praying for a declaration of title and for a permanentinjunction. Pending suit, the respondents 4 and 5 also obtained an interimorder in I.A.No.1569 of 2005 restraining the third respondent fromdisbursing the compensation amount till the disposal of the suit. However,the said interim order of injunction was subsequently vacated by the CivilCourt on 6.12.2005. As against the said order, the respondents 4 and 5filed an appeal in CMA No.18 of 2005. But the said appeal was disposed ofby an order dated 20.4.2006, by which the vacation of the interim order ofinjunction by the Trial Court was upheld.4. Thereafter, the petitioner issued a notice to the thirdrespondent on 28.4.2006, requesting the third respondent to disburse theamount of compensation determined by him. Since the third respondent didnot issue any reply or respond to the notice, the petitioner has come upwith the present writ petition, seeking a Writ of Mandamus to direct therespondents 1 to 3 to disburse the compensation as per the Award dated18.3.2006. https://hcservices.ecourts.gov.in/hcservices/

5. I have heard Mr.T.R.Rajagopalan, learned senior counselappearing for the petitioner, Mr.P.Wilson, learned Assistant SolicitorGeneral appearing for respondents 1 and 2, Mr.V.Arun, learned GovernmentAdvocate, appearing for the third respondent and Mr.R.Subramaniam, learnedcounsel appearing for respondents 4 and 5.6. Mr.T.R.Rajagopalan, learned senior counsel appearing for thepetitioner contended -(a) that the Civil Suit filed by the respondents 4and 5 cannot be an impediment for the disbursement ofthe compensation amount to the petitioner, since thesuit in O.S.No.417 of 2005 for declaration of titlefiled on 7.11.2005 was actually not maintainable, as thelands in question vested with the Central Government byvirtue of Section 3D(2) of the Act, after thepublication of the declaration under Section 3D(1) inthe Government of India Gazette (Extraordinary) No.432S.O.610(E) dated 4.5.2005;(b) that in any case the interim order ofinjunction restraining the third respondent fromdisbursing the compensation amount to the petitioner,originally granted by the Trial Court in I.A.No.1569 of2005 was subsequently vacated on 6.12.2005 and hencethere was no impediment for disbursing the amount to thepetitioner; and(c) that inasmuch as the respondents 3 and 4 havefailed to raise any objection before the thirdrespondent either at the time of Award enquiry orthereafter, in exercise of the right conferred underSection 3G or 3H of the Act, there is virtually nodispute in the eye of law, disabling the thirdrespondent from making payment to the petitioner.7. Mr.P.Wilson, learned Assistant Solicitor General appearing forrespondents 1 and 2 and Mr.R.Subramaniam, learned counsel appearing forrespondents 4 and 5 contended that inasmuch as there is a dispute, thethird respondent will have to follow the procedure prescribed underSection 3H(4) of the Act.8. It is no doubt true that the declaration under Section 3D(1)of the Act, was published in the Gazette of India on 4.5.2005. Therefore,the land in question actually vested with the Central Government on andfrom the said date by virtue of Section 3D(2) of the Act. Even a noticeunder Section 3G(3) inviting claims for determination of compensation waspublished in the English and Vernacular Dailies on 20.7.2005 and the suitin O.S.No.417 of 2005 was filed by the respondents 4 and 5 only on7.11.2005 on the file of the District Munsif Court, Tindivanam. Therefore,the suit praying for a declaration of title and for a permanent injunctionin respect of the very same property was actually not maintainable, evenas against the petitioner herein. Hence, Mr.T.R.Rajagopalan, learnedsenior counsel for the petitioner is right in contending that the suit wasnot maintainable. https://hcservices.ecourts.gov.in/hcservices/

9. It is also true that the interim order of injunctionoriginally granted by the Civil Court in favour of respondents 4 and 5also got vacated in December, 2005, removing the only impediment in thedisbursement of the amount. But does it give a right to the petitioner forpayment of the compensation, de hors the provisions of Section 3H(4) ofthe Act, is the question which has to be determined. 10. It is seen from the averments contained in the plaint filedby the respondents 4 and 5 as well as the Award passed by the thirdrespondent, that the respondents 4 and 5 did not file any objectionsbefore the third respondent at the time of Award enquiry. There is noindication as to whether the respondents 4 and 5 raised any dispute beforethe third respondent with regard to their claim for compensation also. Itis in that context that the learned senior counsel for the petitionercontended that the respondents 4 and 5 are not entitled to seek areference under Section 3H(4) of the Act, after having failed to raise anyobjections in response to a notice under Section 3G(3) or even after theAward was passed. In order to appreciate the said contention, it isnecessary to have a careful look at the provisions of Section 3G(2)(3)(4)and (5) and 3H(1)(2)(3) and (4) of the Act, which read as follows:-"3G. Determination of amount payable ascompensation.--(1) .. ..........(2) Where the right of user or any right in thenature of an easement on, any land is acquired underthis Act, there shall be paid an amount to the owner andany other person whose right of enjoyment in that landhas been affected in any manner whatsoever by reason ofsuch acquisition an amount calculated at ten percent ofthe amount determined under sub-section (1), for thatland.(3) Before proceeding to determine the amount undersub-section (1) or sub-section (2), the competentauthority shall give a public notice published in twolocal newspapers, one of which will be in a vernacularlanguage inviting claims from all persons interested inthe land to be acquired.(4) Such notice shall state the particulars of theland and shall require all persons interested in suchland to appear in person or by an agent or by a legalpractitioner referred to in sub-section (2) of Section3C, before the competent authority, at a time and placeand to state the nature of their respective interest insuch land.(5) If the amount determined by the competentauthority under sub-section (1) or sub-section (2) isnot acceptable to either of the parties, the amountshall, on an application by either of the parties, bedetermined by the arbitrator to be appointed by theCentral Government."3H. Deposit and payment amount.--(1) The amountdetermined under section 3G shall be deposited by theCentral Government in such manner as may be laid down by https://hcservices.ecourts.gov.in/hcservices/ rules made in this behalf by that Government, with thecompetent authority before taking possession of theland.(2) As soon as may be after the amount has beendeposited under sub-section (1), the competent authorityshall on behalf of the Central Government pay the amountto the person or persons entitled thereto.(3) Where several persons claim to be interested inthe amount deposited under sub-section (1), thecompetent authority shall determine the persons who inits opinion are entitled to receive the amount payableto each of them.(4) If any dispute arises as to the apportionmentof the amount or any part thereof or to any person towhom the same or any part thereof is payable, thecompetent authority shall refer the dispute to thedecision of the principal civil court of originaljurisdiction within the limits of whose jurisdiction theland is situated."11. It is seen from the provisions of the Act as extracted abovethat the right of a person to file objections, accrues at two stages viz.,(a) at the stage of Award enquiry and (b) after the Award is passed. Whilethe right under Section 3G(3) is in respect of the quantum of compensationto be determined in the Award enquiry, the right under Section 3H(3) is inrespect of the entitlement of persons to receive the amount determinedunder the Award.12. Moreover, the claims invited under Section 3G(3) are frompersons "interested in the land to be acquired". But the claims underSection 3H(3) are from persons "interested in the amount deposited".Therefore, there does not appear to be a prohibition for a person to makea claim for the amount of compensation, merely because he failed toparticipate in the Award enquiry and lodge a claim. In other words, theAct maintains distinction between "person interested in the land" and"person interested in the compensation". Hence, the right to lodge a claimfor compensation or any part thereof under Section 3H(3), is notrestricted only to persons who lodge a claim under Section 3G(3) of theAct. Consequently, the fact that the respondents 3 and 4 did not file anyclaim and did not participate in the Award enquiry, in my considered view,will not preclude them from making a claim under Section 3H(3) for thecompensation or any part thereof.13. The contention that the respondents 4 and 5 did not make anyclaim with the Competent Authority under Section 3H(3) of the Act and thattheir suit by itself, cannot be taken to be a claim under the Act, cannotbe accepted. The fact that the respondents 4 and 5 filed a suit making aclaim on the property, impleading the Competent Authority as a party (15thdefendant), in my considered view, is sufficient for the respondents 1 to3 to conclude that there is a claim under Section 3H(3) and that there hasarisen a dispute under Section 3H(4) of the Act. The suit may be notmaintainable in view of the land already having vested with the CentralGovernment. Nevertheless, the claim made in the suit cannot cease to be aclaim for property rights over compensation, merely because the suit is https://hcservices.ecourts.gov.in/hcservices/ not maintainable. This interpretation of the provisions of Section 3G and3H of the Act, is actually warranted as a result of one crucial fact viz.,that the National Highways Act, 1956, does not prescribe any procedure fora person claiming an interest in the amount of compensation alone, forlodging his claim under Section 3H(3) or (4) of the Act. While any claimmade in respect of the quantum of compensation, is by virtue of a publicnotice published in two Dailies under Section 3G(3) of the Act, the claimlodged under Section 3H(3) of the Act, is not in pursuance of any suchnotice. There is no procedure prescribed for a person to lodge a claim forpayment of compensation, after the Award is passed. Therefore, in myconsidered view, whenever the respondents 1 to 3 come to notice that thereis any claim by any person with regard to the payment of compensation, theCompetent Authority is bound to follow the procedure prescribed underSection 3H(4) of the Act. 14. In this case, it has come to the notice of the CompetentAuthority, on account of the suit filed by the respondents 4 and 5, that"several persons claim to be interested in the amount" as required underSection 3H(3) of the Act and that "a dispute has arisen to theapportionment of the amount or any part thereof or to any person to whomthe same or any part thereof is payable" as required under Section 3H(4)of the Act. Once the existence of such a claim or dispute has come to thenotice of the Competent Authority, even on account of some non-maintainable proceedings, the Competent Authority cannot close its eyes onthe ground that the claim was not lodged with him. To hold that the claimor dispute should be lodged with the Competent Authority and that theCompetent Authority is entitled to take a decision to refer or not, such adispute, would amount to clothing the Competent Authority with the powerto adjudicate upon the very dispute and it would defeat the purpose ofSection 3H(4) of the Act.15. The scope of reference under Section 18 and the scope ofreference under Section 30 of the Land Acquisition Act, 1894 and the powerof the Competent Authority under both the said provisions fell forconsideration before the Supreme Court in SHARDA DEVI vs. STATE OF BIHAR((2003) 3 SCC 128)). It is relevant to point out here that the provisionsof Section 30 of the Land Acquisition Act, 1894 is almost identical withthe provisions of Section 3H(4) of the National Highways Act, 1956 andhence the law laid down by the Supreme Court in the said case wouldsquarely apply to the present case also.16. In para-23 of the abovesaid judgment, the Supreme Court madea comparative study of the provisions of Sections 18 and 30 in thefollowing words:-"23. The two provisions contemplating power of theCollector to make reference as contained in Section 18and Section 30 of the Act need a comparative study.Under Section 18 the subject-matter of reference can bea dispute as to any one or more of the following:(i) asto the measurement of the land, (ii) as to the amount orthe quantum of the compensation, (iii) as to the personsto whom the compensation is payable, and (iv) as to theapportionment of the compensation among the personsinterested. Under Section 30 the subject-matter of https://hcservices.ecourts.gov.in/hcservices/ dispute can be:(i) the apportionment of the amount ofcompensation or any part thereof, (ii) the persons towhom the amount of compensation or any part thereof ispayable."17. The difference between the reference under Section 18 and theone under Section 30 was summarised in para-25 of the abovesaid judgmentby the Apex Court as follows:-"By reference to locusUnder Section 18(1) a reference can be made by theCollector only upon an application in writing havingbeen made by (i)any person interested, (ii) who has notaccepted the award, (iii)making application in writing,to the Collector, requiring a reference by the Collectorto the Court, (iv)for determination of any one of thefour disputes (specified in the provision), and (v)stating the grounds on which objection to the award istaken. For reference under Section 30 no application inwriting is required. The prayer may be made orally or inwriting or the reference may be made suo motu by theCollector without anyone having invited the attention ofthe Collector for making the reference.By reference to the disputes referableUnder Section 18(1) there are four types ofdisputes which can be referred to the civil court fordetermination. They are disputes:(i)as to themeasurement to the land, (ii)as to the amount of thecompensation, (iii) as to the persons to whom thecompensation is payable, or (iv)as to the apportionmentof the compensation among the persons interested. UnderSection 30 of the only disputes which are referable are:(i)any dispute as to the apportionment of the amount ofcompensation or any part thereof, or (ii)a dispute as tothe persons to whom the amount of compensation or anypart thereof is payable. A dispute as to themeasurement of the land or as to the quantum ofcompensation or a dispute of a nature not falling withinSection 30, can neither be referred by the Collectorunder Section 30 of the Act nor would the civil courtacquire jurisdiction to enter into and determine thesame.By reference to the nature of powerUnder Section 18 of the Act the Collector does nothave power to withhold the reference. Once a writtenapplication has been made satisfying the requirements ofSection 18, the Collector shall make a reference. TheCollector has no discretion in the matter, whether thedispute has any merit or not is to be left for thedetermination of the Court. Under Section 30 of theCollector may refer such dispute to the decision of theCourt. The Collector has discretion in the matter.Looking to the nature of the dispute raised, the personwho is raising the dispute, the delay in inviting the https://hcservices.ecourts.gov.in/hcservices/ attention of the Court, and so on -- or suchillustrative factors which may enter into theconsideration of the Collector while exercising thediscretion. If the Collector makes the reference it maybe decided by the court subject to its forming anopinion that the dispute was capable of reference anddetermination under Section 30 of the Act. In case theCollector refuses to make a reference under Section 30of the Act, the person adversely affected by withholdingof the reference or refusal to make the reference shallbe at liberty to pursue such other remedy as may beavailable to him under the law such as filing a writpetition or a civil suit.By reference to limitationUnder Section 18 the written application requiringthe matter to be referred by the Collector for thedetermination of the court shall be filed within sixweeks from the date of the Collector's award if theperson making it was present or represented before theCollector at the time when he made his award or withinsix weeks of the notice from the Collector under Section12(2) or within six months from the date of theCollector's award, whichever period shall first expire.There is no such limitation prescribed under Section 30of the Act. The Collector may at any time, not bound bythe period of limitation, exercise his power to make thereference. The expression "the person present orrepresented" before the Collector at the time when hemade his award would include within its meaning a personwho shall be deemed to be present or represented beforethe Collector at the time when the award is made. No onecan extend the period of limitation by taking advantageof his own wrong. Though no limitation is provided formaking a reference under Section 30 of the Act, needlessto say, where no period of limitation for exercise ofany statutory power is prescribed, the power cannevertheless be exercised only within a reasonableperiod; what is a reasonable period in a given caseshall depend on the facts and circumstances of eachcase."18. Finally in para-26, the Supreme Court categorically laid downthe law that the remedy of reference under Section 18 is intended to beavailable only to a "a person interested" and that Section 30 is notconfined in its operation only to "persons interested". The followingportions of para-26 of the abovesaid judgment are of significance:-"The scheme of the Act reveals that the remedyof reference under Section 18 is intended to be availableonly to a "person interested".............................Section 30 is not confined in its operation only to"persons interested". It would, therefore, be available https://hcservices.ecourts.gov.in/hcservices/ for being invoked by the "persons interested" if theywere neither present nor represented in the proceedingsbefore the Collector, nor were served with notice underSection 12(2) of the Act or when they claim on the basisof a title coming into existence post-award. Thedefinition of "persons interested" speaks of "an interestin compensation to be made".19. The ratio laid down by the Supreme Court in the aforesaidcase, as applicable squarely to the present case, is in the followingportion of para-25 of the judgment, which is extracted at the cost ofrepetition:-"For reference under Section 30 no application inwriting is required. The prayer may be made orally orin writing or the reference may be made suo motu by theCollector without anyone having invited the attentionof the Collector for making the reference."Therefore, in my considered view, the suit filed by the respondents 4 and5 was sufficient for the Competent Authority to come to the conclusionthat a dispute has arisen within the meaning of Section 3H(4) of the Act.20. Under such circumstances, the writ petition is disposed of,with a direction to the Competent Authority to refer the dispute on thequestion of apportionment of the amount of compensation and the questionas to who is entitled to receive the compensation in whole or in part, tothe Principal Civil Court of Original Jurisdiction, in terms of Section 3H(4) of the Act, within a period of four weeks from the date of receipt orproduction of a copy of this order. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.Svn.To1.The Director of Planning, National Highways Authority of India, No.6(Old No.44), I Floor, 3rd Main Road, Pon Nagar, Tiruchirappalli-620 001. https://hcservices.ecourts.gov.in/hcservices/

2.The Competent Authority, (Land Administration), National Highways 45, and District Revenue Officer, Villupuram District.3.The Special Tahsildar, Land Acquisition, No.22, Rajagopal Pillai Street, 4 Lane National Highway No.45, Tindivanam.+ 1 CC To Mr. T.R.Rajaraman, Advocate SR NO.2482+ 1 CC To Mr. P.Wilson, Advocate SR NO.2742+ 1 CC To M/s.Hema Sampath, Advocate SR NO.2836 WP No.18667 of 2006mm[co]gp/23.1