S. Nirmala v. The State Of Tamil Nadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.03.2018 CORAM :
THE HONOURABLE MR.JUSTICE N.SESHASAYEE W.P.No.5507 of 2015 S.Nirmala ...
Petitioner Vs 1.The State of Tamil Nadu Rep by its Secretary Industries Department Fort St.George Chennai - 9.
2.The District Collector Kanchipuram District.
3.The District Revenue Officer Land Acquisition Cheyyur Ultra Mega Power Project Cheyyur Kanchipuram District.
4.The Special Tahsildar Land Acquisition Cheyyur Ultra Mega Power Project Cheyyur Kanchipuram District.
... Respondents Prayer:
Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus by calling for the records of the second respondent in his proceedings in Na.Ka.No.G.1/1199/2014 dated 17.11.2014 which was communicated to the petitioner by the proceedings of the fourth respondent in Na.Ka.No.47/2010/A2 dated 28.11.2014 and quash the same and consequently direct the second respondent to pass the award for the lands acquired from the petitioner in tune with the provisions of the Tamil Nadu Acquisition of Land of Industrial Purposes Act and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013.
For Petitioner : Mr.D.Ravichander For Respondents: Mr.Akhil Akbar Ali Government Advocate
ORDER
The petitioner owns a piece of land in Survey No.246/12D in Sithaarkadu Village, Cheyyur Taluk, Kancheepuram District and this was acquired under the provisions of the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 [T.N.Act 10 of 1999] (hereinafter referred to as "Industrial Purposes Act' in brevity]. The petitioner contends that she was invited by the fourth respondent through a notice dated 4.09.2013 issued under Section 7(2) of the Act for fixing the compensation, and was offered Rs.6,500/- per cent. Since the petitioner did not consent to it, the matter was referred to the District Collector, Kancheepuram, the second respondent herein for determination of fair compensation. Be that as it may, the petitioner received a notice dated 13.01.
2004 issued by the fourth respondent under Section 7(5) and 7(7) of the Act, whereunder the petitioner was directed to appear before the District Collector, Kancheepuram on 28.01.2014, to put forward his statement with regard to the acquisition proceedings. Thereafter, the petitioner visited the office of the District Collector, along with required documents and submitted a written representation insisting for payment of compensation at Rs.25,000/- per cent. This was not accepted by the authorities and the petitioner was informed to accept the amount of Rs.6,500/- as compensation. Resisting to it, the petitioner has filed her written objection before the fourth respondent. 1.2. To the shock and surprise of the petitioner, later she recevied the impugned proceedings dated 28.11.
2014 from the fourth respondent, wherein it is stated that since the petitioner has not agreed to the compensation amount determined by the Government, the Land Acquisition Authorities has imposed its own value under Section 7(3) of the Act, and it had fixed the compensation at Rs.700/- per cent for wet lands and Rs.600/- per cent for dry lands. Dissatisfied with the act of the Land Acquisition Authorities in determining the compensation, the petitioner has filed the present writ petition to quash the impugned proceedings dated 28.11.2014.
2. Heard Mr.Akhil Akbar Ali, learned Government Advocate appearing for the respondents. The respondents have filed their counter affidavit along with a petition in MP.No.2 of 2015, praying to vacate the interim stay granted by this Court on 27.02.2015 in MP.No.1 of 2015. The defence taken by the respondents in the counter affidavit is that the writ petitioner had approached the respondents on three occasions making a stake claim of Rs.25,000/- per cent , then Rs.80,000/- and now claim Rs.44,700/- per cent as compensation for the lands acquired, which shows that the petitioner does not have a definite idea as to what to claim, and hence, no award has been passed in the case of the petitioner. Furthermore, since the writ petitioner had challenged the impugned proceedings of the second respondent
under Section 7(3) of the Act, the question of invoking Section 8 of the Act does not arise at this stage.
3. The counsel for the petitioner submitted that the statute is clear and straight forward when it pointedly declared that where an agreement could not be arrived on the compensation payable under Section 7(2) of the Act, resort should necessarily have to be made to Section 7(3) of the Act. And given the fact that Right to Fair Compensation Act, Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30/2013) has come into force, any process of procedure by which an award is passed under Sec.7(3) of the Industrial Purposes Act should not ignore the beneficial provisions of the Right to Fair Compensation Act.
4. The learned Government Advocate, on instruction made a fair statement to this Court that compensation and other benefits would be given to the petitioner only in terms of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act, 30 of 2013).
5. There is a broad consensus that award should be passed and compensation should be awarded only under Sec.7(3) of the Industrial Purposes Act. The ancillary issue is, if the principles or the manner by which compensation is to be paid under the Right to Fair Compensation Act, 2013, should be telescoped into the Industrial Purposes Act. Here Sec.105-A becomes relevant and it reads :
105-A. Provisions of this Act not to apply to certain Tamil Nadu Acts or to apply with certain modifications-
(1) Subject to sub-section (2), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fifth Schedule.
(2) The State Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fifth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the
notification, as the case may be.
(3) ..... ...... ....... .... ... ....... ......
6. This Court has to presume the Constitutionality of Sec.105-A, challenge to it notwithstanding, now pending consideration before a Division Bench of this Court. Sec.105-A(2), if closely read, does not attempt to carve out an absolute exemption from the operation of the Right to Fair Compensation Act, more particularly, those that deal with the beneficial aspects to the owners of the lands acquired. It only requires a notification to do it, but it also ushers in to declare the same should not "reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement". The Government too came up with G.O.(Ms.)No.251 Industries (SIPCOT-LA) Department dated 31.12.2014, and extended the benefits that the Right to Fair Compensation Act confers on the owners of the lands acquired to those who are similarly placed in an acquisition proceedings under the Industrial Purposes Act. And, this is no more res integra, and is decided in V.Sathish Kumar and Ors. Vs. The Secretary to Government, Industries Department, Government of Tamil Nadu and Ors.
[MANU/TN/1116/2017]. This Court is in agreement with the said view.
7. Accordingly, this petition is allowed and the impugned proceedings of the fourth respondent dated 28.11.2014 in so far as the petitioner's property is concerned is hereby quashed and the matter is remanded back to the Land Acquisition Officer, who is directed to quantify the compensation either through private negotiations or by an enquiry but in all cases without diluting the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30/2013) as mandated in Sec.105-A(2) of the said Act, and pass an award. The respondents are further directed to afford adequate and effective opportunity of hearing to the petitioner. The Land Acquisition Authority is directed to complete the proceedings of passing an award within six months from the date of receipt of a copy of this order. No Costs.
Sd/- Assistant Registrar(CS IX) //True Copy// Sub Assistant Registrar
ds To:
1.The Secretary The State of Tamil Nadu Industries Department Fort St.George Chennai - 9.
2.The District Collector Kanchipuram District.
3.The District Revenue Officer Land Acquisition Cheyyur Ultra Mega Power Project Cheyyur Kanchipuram District.
4.The Special Tahsildar Land Acquisition Cheyyur Ultra Mega Power Project Cheyyur Kanchipuram District.
+1cc to Mr.D.Ravichander, Advocate Sr.No.17243 +1cc to Government Pleader SR.No.17128 sm:6.6.2018 W.P.No.5507 of 2015 1/3