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Madras High CourtWP/13150/2013disposed of

G.Devan, v. The Collector,

2021-09-15Honourable Mr Justice G.K. Ilanthiraiyan4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 15.09.2021 CORAM :

THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN W.P.NO.13150 OF 2013 G.Devan ... Petitioner -Vs1. The Collector, Krishnagiri.

2. The Special Tahsildar, (Land Acquisition), Krishnagiri.

... Respondents PRAYER:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records of the first respondent in his proceeding in Na.Ka.218/2012/Ee.Thee dated 07.02.2013 and quash the same and consequently direct the respondents to enhance the compensation as per the Land Acquisition Act, 1894 and other relevant aspects.

For petitioner : Mr.K.Raja For Mr.N.Suresh For Respondents : Mr.Richardson Wilson, Government Advocate

ORDER

The Writ Petition has been filed to issue a writ of certiorarified mandamus calling for the records of the first respondent in his proceeding in Na.Ka.218/2012/Ee.Thee dated 07.02.2013 and quash the same and consequently direct the respondents to enhance the compensation as per the Land Acquisition Act, 1894 and other relevant aspects.

2. The case of the petitioner is that the petitioner owned land in survey No.522/1A2 admeasuring 2750 sq.mtrs. and in survey No.520/1B admeasuring 6000 sq.mtrs. The said land was acquired for the expansion of National Highway No.46 under the provisions of National Highways Act, 1956 (hereinafter called as 'the Act). Thereafter, award has been passed and determined the value of the land at Rs.89,661/- for the land comprised in survey No.520/1B and Rs.47,034/- for the land comprised in survey No.522/1A2 as compensation. However, the petitioner contended that adjacent land was fixed at Rs.200/- per sq.ft. as market value for transaction. It was brought to the notice of the second respondent and the second respondent, he was being Arbitrator and he enhanced compensation amount to an extent of Rs.

3,75,522/- without analysing or considering the said aspect by the order dated 14.07.2008. Therefore, he made another representation dated 18.12.2012 to the first respondent seeking additional market value and 30% solatium with interest as per the Land Acquisition Act, 1894. However, the first respondent rejected the said representation.

3. The learned counsel for the petitioner raised specific ground that the first respondent did not follow the procedure contemplated under Section 3 (G) (7) of the National Highways Act, 1956. Section 3J of the National Highways Act was held illegal and the persons were given right to claim compensation as per the Land Acquisition Act, 1894. As per Land Acquisition Act, 1894, the person from whom land was acquired is entitled for compensation determined under Section 23(1) of the Land Acquisition Act, 30% of solatium at the market value determined under Section 23(1) of the Land Acquisition Act. Additional amount at 12% per annum of the market value determined under Section 23(1) of the Land Acquisition Act for the period specified under Section 23(2) of the Land Acquisition Act with interest.

4. The first respondent filed counter and Mr.Richardson Wilson, Government Advocate submitted that the lands belong to the petitioner were acquired in Bargur Village of Krishnagiri Taluk and award was passed in Award No.80201 of 2003 dated 04.09.2003. The Land Acquisition Officer has fixed Rs.55,000/- per acre as compensation for dry lands. Accordingly, a sum of Rs.89,661/- for 6000 sq. mtrs in survey No.520/1B and a sum of Rs.41,090/- for 2750 sq.mtrs in survey No.522/1A2 were fixed and award has been passed in favour of the petitioner. The entire award amount has been paid to the petitioner. On receipt of the same, the petitioner filed petition before the Arbitrator and the Collector, Krishnagiri to enhance the compensation amount for the acquired land. After conducting enquiry, compensation was enhanced and fixed at Rs.1,50,000/- per acre. It is three times of the value of the award and accordingly the amount has

been paid to the petitioner. Therefore, there is no need to refer the matter under the Land Acquisition Act, 1894.

5. Heard, Mr.K.Raja, the learned counsel for the petitioner, and Mr.Richardson Wilson, Government Advocate appearing for the respondents.

6. The Hon'ble Supreme Court of India in the case of State of Madhya Pradesh Vs. G.C.Mandawar reported in AIR 1954 C 493 has laid down that when the same legislature enacts two different laws, but in substance, they form one legislation, then it is open to the Court to discard the form and treat them as one law, and strike it down if in their conjunction, they result in discrimination. When this proposition is applied, it leaves no manner of doubt that Section 3J of the Act results in discrimination to the land owners whose land is acquired under this Act with those land owners where land is acquired for public purpose, under the Acquisition Act, therefore, Section 3J on the face of it, is violative of the Constitution, as it does not satisfy the well known test of reasonable classification, permissible for enacting the legislation.

The Hon'ble Supreme Court of India also held in the case of Union of India Vs. Tarsem Singh reported in (2019) 9 SCC 304 that Section 3J of the Act, as unconstitutional and violative of Article 14 of the Constitution of India. Therefore, the petitioner is entitled for solatium at the rate of 30% as per Section 23(1) of the Land Acquisition Act, 1894 and the additional amount at the rate of 12% per annum as per Section 23(1) of the Land Acquisition Act, 1894 with interest. That apart, where a provision has been declared to be unconstitutional by the High Court or by the Supreme Court, the same will have a retrospective effect and it will be deemed that such a provision was not available in the relevant enactment and it will be treated as non est in the eye of law.

The judicial decisions will have retrospective operation unless and otherwise it is specified in the judgment itself that it will have only a prospective effect. Therefore, the petitioner is entitled for compensation and additional market value under Section 23(1)(A), Solatium under Section 23(2) of the Land Acquisition Act, 1894 with interest as provided under the said Act.

7. In view of the above, the impugned order dated 07.02.2013 is set aside. The petitioner is directed to make a fresh representation before the first respondent within a period of two weeks from the date of receipt of copy of this order and on receipt of the same, the first respondent is directed to conduct enquiry in this regard and pass appropriate orders within a period of twelve weeks from the date of receipt of the representation.

8. With the above directions, this writ petition is disposed of. No order as to costs.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar lok To 1.

The Collector, Krishnagiri.

2.

The Special Tahsildar, (Land Acquisition), Krishnagiri.

+1cc to Mr.M.Kaviveerappan, Advocate, S.R.No.47333 +1cc to the Government Pleader, S.R.No.47553 W.P.NO.13150 OF 2013 KSM(CO) PBS/29/09/2021