N.R.KRISHNAMOORTHY RAJA, V. THE SPECIAL COMMISSIONER AND

WA(MD)/1313/2014

AI Insights

The case revolves around a dispute where the appellant, N.R. Krishnamoorthy Raja, contested the acquisition of his private land by the Theni-Allinagaram Municipality for public road use without compensation. The appellant argued that his land, used as a private pathway, was unlawfully taken over by the municipality following resolutions that declared it a public road, influenced by a neighboring cinema theater owner. The municipality contended that the land was acquired following the procedures under the Tamil Nadu District Municipalities Act, 1920, specifically sections 178 and 179, which allowed such a conversion without compensation if supported by three-fourths of the landowners. The court found that the municipality's actions violated the appellant's constitutional right under Article 300A, as the land was taken without proper compensation or adherence to the Land Acquisition Act.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 736002 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 10-04-2018
• Assessment Year: misc
• Other Referred Cases: Laxman Lal (Dead) Through LRs and Another Vs State of Rajasthan and Others
• Laws Referred To: Article 226 of the Constitution of India, Clause 15 of Letters Patent Act, Tamil Nadu District Municipalities Act 1920, Land Acquisition Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: A MUTHUKARUPPAN; HEMA KARTHIKEYAN
• Assessee Lawyers: S NATARAJAN
• Keywords: Compensation; Land Acquisition; Mandamus; Municipality; Public road; Resolution; Writ Appeal; Private Pathway
• Section: 178; 179; 300A

Judgement Text

"1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Date of Reserving Judgment 13.11.2017 Date of Pronouncing Judgment 10.04.2018 CORAM THE HON'BLE MR.JUSTICE K.KALYANA SUNDARAM THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN W.A.(MD).No.1313 of 2014 N.R.Krishnamoorthy Raja ... Appellant/Petitioner Vs. 1. The Special Commissioner and Commissioner for Land Administration, Chepauk, Chennai - 5. (Deleted as per the order of this Court dated 10.04.2018 made in C.M.P.(MD).No.3391 of 2016) 2. The District Collector, Theni District, Theni - 626 531. 3. The Municipal Commissioner, Theni-Allinagaram Municipality, Theni-626 531. ... Respondents/Respondents Writ Appeal, filed under Clause 15 of Letters Patent Act to set aside the order passed by this Court in W.P.No.8370 of 2007 dated 10.09.2014. Prayer in WP(MD). 8370/ 2007 : Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of Mandamus, directing the respondents to pay the due compensation with interest for taking over the petitioners land in Survey No.514/1C2 (149 x 13\" ) and T.S.No.130/2 of Block No.19 of D ward of Theni- Allinagaram Municipality For Petitioner : Mr.S.Natarajan For Respondents : Mr.A.Muthukaruppan Additional Government Pleader For R1 & R2 M/s.Hema Karthikeyan For R3 https://hcservices.ecourts.gov.in/hcservices/ 2 JUDGMENT (Judgment of the Court was delivered by V.BHAVANI SUBBAROYAN,J.,) The present writ appeal is filed against the order passed by the Learned Single Judge in W.P.(MD) No.8370 of 2007 dated 10.09.2014, wherein the petitioner sought for the prayer of Writ of Mandamus directing the respondents to pay the due compensation with interest for taking over the petitioner's land in S.No.514/1C2 (149' x13') and T.S.No.130/2 of Block No.19 of D Ward of Theni – Allinagaram Municipality. 2. The appellant has filed the writ petition and claimed to be the owner of the land measuring 13 ft. X 149 ft. comprised in S.No.514/1C2 within Theni Municipal Limits. The appellant contended that, he constructed a building in the said S.No.514/1C2 and he left the above said land measuring 13ft. X 149 ft. as a private pathway to reach his house. The appellant further contended that, the 3rd respondent/Municipal Commissioner passed a Resolution to take over the land belonging to the appellant on the behest of one Mr.N.L.R.Jeyasekaran, who had constructed a Cinema Theater in S.No.515/2, who had approached the 3rd respondent herein to make the land belonging to the appellant as well as the said Mr.N.L.R.Jeyasekaran as road and declare it as a public road for the convenience of the public. The 3rd respondent passed Resolutions No.83 dated 25.05.1998 and Resolution No.478 dated 19.03.1999 to the effect that the above said stretch of land in which the private land of the appellant situated in S.No.514/1C2 has been taken over by the Municipality for forming public road. 3. The appellant has also claimed that there was no notice issued to him either before passing of the resolutions or thereafter. The appellant also contended that the 3rd respondent has taken the subject land without adopting due procedures contemplated and without paying any compensation for the said land under the Land Acquisition Act. Moreover, the appellant's land was not acquired even under private negotiation. The appellant had also made continuous representations to the Commissioner for Land and Administration, who in turn sought for a report from the 3rd respondent herein and finally the 3rd respondent took a stand that the said land has already been treated as a public road and the appellant is not entitled for any compensation. Hence the appellant has filed the above writ petition. 4. A detailed counter is also filed by the 3rd respondent rebutting all the claims set out by the appellant in the affidavit filed in support of the writ petition. 5. Accepting the contention put forth by the 3rd respondent, the learned Single Judge dismissed the writ petition holding that, if the appellant had got any right to claim compensation, it is for him to work out his remedy before the Civil Court and in the writ https://hcservices.ecourts.gov.in/hcservices/ 3 petition, it is not possible to resolve the above disputed question of fact and to arrive at the market value of the said property. As against the said order, the present writ appeal has been filed by the appellant on various grounds. 6. Heard the learned counsel appearing for the appellant and the learned Additional Government Pleader appearing for the 1st and 2nd respondents and the learned counsel appearing for the 3rd respondent. 7. It is not in dispute that the appellant is the rightful owner of the land in S.No.514/1C2 to an extent of 13 ft. X 149 ft. It is the case of the 3rd respondent that they have followed the procedure as laid down under Sections 178 and 179 of Tamil Nadu District Municipalities Act 1920 and the third respondent has got power to declare a private road as public road. 8. The third respondent had relied on the Sections 178 and 179 of Tamil Nadu District Municipalities Act, which read as follows: 178. Power of Executive authority to order work to be carried out or carry it out himself in default :- \" (i) If any private street or part thereof is not levelled, paved, metalled, flaggd, channelled, drained, conserved or lighted to the satisfaction of the (executive authority), he may by notice, require the owners or occupiers of buildings or lands fronting or abutting on such street or part thereof to carry out any work which in his opinion may be necessary and within such time as may be specified in such notice. (ii) If such work is not carried out within the time specified in the notice, the (executive authority) may, if he thinks fit, execute it and the expenses incurred shall be paid by the owners or occupiers in default according to the frontage of their respective buildings or land and in such proportion as may be settled by the (executive authority). 179. Right of owners to require street to be declared public :- https://hcservices.ecourts.gov.in/hcservices/ 4 If any street has been levelled, paved, metalled, flagged, channelled, drained, conserved and lighted under the provisions of section 178, such street shall, on the requisition of not less than three-fourths of owners thereof, be declared a public street.\" 9. The 3rd respondent further submitted that under the above provisions, that with the approval of 3/4th of the owner’s of the property, the said private road/land was converted into a public street. Pursuant to that, the 3rd respondent issued the notification in Theni District Gazette on 19.07.1998, calling upon objections and suggestions from the general public about the road portion taken for Municipal maintenance, within 60 days. Since there was no objection received within the time, the Municipal Council passed Resolution No.478 dated 19.03.1999, and declared the said road as municipal road. 10. According to the 3rd respondent, there is no provision for payment of compensation for the private lands declared as public road, and the 3rd respondent had not taken any proceedings under the Land Acquisition Act. The 3rd respondent in its counter as well as through his counsel has vehemently argued that whenever the land is required for the Government, then only a compulsory Land acquisition will be initiated. Since in the above matter, 3/4th of the land owners had given acceptance letter to the 3rd respondent, the 3rd respondent declared the land as public road, without paying any compensation. The learned counsel for the 3rd respondent also contended that since the 3rd respondent has followed all the procedures as laid down in the Tamil Nadu District Municipalities Act 1920, request of the appellant seeking compensation for his land, which was taken up by the municipality for public road, cannot be acceptable. 11. On perusal of the documents filed in the typed set of papers and upon hearing the arguments put forth by the learned counsels, the following questions arise for consideration:- 1. whether the land belonging to the appellant can be acquired expect otherwise under the law contemplated viz., the Land Acquisition Act? 2.whether the 3rd respondent has any power under section 178 to dispense with the procedure contemplated under the Land Acquisition Act? 12. It would be appropriate to refer Chapter-IV of the Constitution of India wherein, under Article 300A, the Constitution guarantees that no person shall be deprived of his property except by the authority of law. The Constitution of India, guarantees any https://hcservices.ecourts.gov.in/hcservices/ 5 person including a legal or jurist person, to hold property and the person shall not be deprived of such property except otherwise by due process of law. It is pertinent to refer, in connection with the above Article, the resolution passed by the 3rd respondent in Resolution No.478 dated 19.03.1999. bghUs; njdp?my;ypefuk; efuhl;rp vy;iff;Fl;gl;;l rh;nt vz;/514-1V. 514-11 kw;Wk; 514-1 rp2?y; cs;s 16'' mfy 305'' 0'' ePs bjUit efuhl;rpapy; guhkhpg;gpw;F vLj;Jf;bfhs;s efh;kd;wj;jPh;khd vz;/83 ehs; 25/05/1998?d; go jPh;khdpf;ff;ggl;Ls;sJ/ ,jd;go nkw;go bjUit efuhl;rpapd; guhkhhpg;gpw;F vLj;Jf;bfhs;s Ml;nrgid my;yJ Mnyhrid ,Ug;gpd; bjhptpf;fnfhhp 19/07/1998?k; njjpa khtl;l murpjHpy; mwptpf;if btspaplg;gl;lJ. mwptpf;ifapy; Fwpg;gplg;gl;l 60 jpd';fSf;Fs; Mnyhridnah Ml;nrgidnah bgwg;gltpy;iy/ vdnt nkw;go bjUit efuhl;rp bjUthf vLj;Jf;bfhs;s kd;wj;jpd; Kotpw;F itf;fg;gLfpwJ/ mYtyf Fwpg;g[: :- khtl;l murpjH; btspahd 60 jpd';fSf;Fs; Ml;nrgid my;yJ Mnyhrid bgwg;gltpy;iy/ vdnt nkw;go bjUit efuhl;rp bjUthf cWjp bra;J jPh;khdpf;fyhk;/ 13. It could be seen from the above resolution that even prior to the passing of Resolution No.478 dated 19.03.1999, the 3rd respondent passed Resolution No.83 dated 25.05.1998 and decided to declare the land in S.No.514/1A, 514/11 and 514/1C2 to an extent of 16 ft. X 305 ft. to be maintained by the municipality and the 3rd respondent had given 60 days time for any objection to be received in this regard. This resolution seems to be published in the District Gazette. 14. The 3rd respondent who ought to have followed the procedures contemplated under Land Acquisition Act have decided to adopt procedures under sections 178 and 179 of Tamil Nadu District Municipalities Act, 1920 where under if any private street has been levelled, pavad, maintained by the District Municipal Authorities on the requisition of not less than three forth of the owners thereof, be declared as public street. The land in question as far as S.No.514/1C2 belongs to the appellant to an extent of 16 ft. width 305 ft length. It is to be seen from the procedures that whether 3/4th owners of land can forego the interest of the appellant who owned land S.No.514/1C2 was dispensed with his consent. Right of property is a constitutional right and any acquisition of land without following the procedures established in Land Acquisition Act or depriving the land owners from their entitlement of compensation in lieu of their land acquired, then the entire proceedings will be violative of Article 300A. Such an action depriving any person entitlement of their compensation otherwise than under due process of law constitutes denial of statutory right. https://hcservices.ecourts.gov.in/hcservices/ 6 15. The appellant in the Writ petition only sought for mandamus directing the respondent to pay compensation with interest by taking over the appellant's land, ought to have considered in the light of Judgment rendered in 2007 (3) CTC 28 The learned Single Judge while dismissing the Writ petition has interpreted the Judgment reported in 2007 (3) CTC 28. As far as the case in hand and the case referred, the principles declared in case reported in 2007 (3) CTC 28 are one and the same. The case referred was with regard to the Commissioner of Hindu Religious and Charitable Endowments, giving consent for acquisition of land belonging to the Arilmugu Periyapalayathammal Temple without the consent of the temple, for the purpose of constructing a community hall to the Corporation of Chennai, then Corporation of Madras. The issue in that case was whether the temple is entitled for enhancement of compensation when, in particular, a devotee of the temple had moved the Court demanding for a particular amount of compensation. It would be pertinent to refer paragraphs 8.1 and 8.2 of the Judgment of this Court reported in 2007 (3) CTC 28 (cited Supra) which reads as follows: “8.1. It is settled law that there cannot be any estoppel against statutory rights. The plea of estoppel is closely connected with the plea of waiver, the object of both to ensure bona fides in day-to-day transactions. 8.2. There can be no waiver of the fundamental right founded on Article 14 of the Constitution nor there can be waiver of any other fundamental right guaranteed by Part III of the Constitution. The Constitution makes no distinction between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy. It cannot be urged that it is open to a citizen to waive his fundamental rights conferred by Part III of the Constitution and the Supreme Court would be the bulwark of the fundamental rights which have been for the first time enacted in the Constitution and it would be a sacrilege to whittle down those rights in the manner attempted to be done, vide decision of the Constitution Bench of the Apex Court in Basheshar Nath v. Commissioner of Income tax, AIR 1959 SC 149.” 16. With reference to the above principles laid down by the Division Bench of this Court, it is clear that there cannot be any waiver of any fundamental rights guaranteed under the Constitution of India. The third respondent, though having power to declare a private property (pathway), on the requisition of 3/4th of the owners, as public street, cannot deprive the right of the land owners to seek compensation for the land so declared as a public street. https://hcservices.ecourts.gov.in/hcservices/ 7 17. The case in hand, wherein, the third respondent has not denied the title of the appellant to an extent of 16 feet width and 305 feet length in S.No.514/1C2. After converting the same into public street, the third respondent cannot deprive the right of compensation entitled by the appellant, merely because other 3/4th owners have consented to declare the private street as a public street. 18. In fact the other case referred by the appellant reported in 2013 (3) SCC 764 [Laxman Lal (Dead) Through LRs and Another Vs State of Rajasthan and Others] wherein, the Honorable Supreme Court has held that the valuable right conferred on the Land owners under Section 5(A) of the Land Acquisition Act cannot be taken away without justification. In the above referred case, the Honorable Supreme Court while dealing with dispensation of Section 5(A) notice under the Land Acquisition Act, held that even while exercising urgent clause under Section 17 Section 5(A) enquiry cannot be dispensed with. 19. Any acquisition of land under any provision of the statute, if not compensating the land owners, such acquisition cannot be considered lawfull as any owner of the land is entitled for a fair compensation to the land acquired. The Land Acquisition Act is a beneficial legislation, wherein, the valuable right of the land owners, while acquiring the land for any public utility is compensated accordingly, as specified under the Land Acquisition Act. The third respondent merely invoking Sections 178 and 179 of Tamil Nadu District Municipalities Act, 1920 deprive the valuable right of the land owner to seek compensation and in fact to seek appropriate enhanced compensation too. 20. The third respondent cannot say that by merely following the procedures under the Tamil Nadu District Municipality Act, the appellant is not entitled for fair compensation. The procedures under the Tamil Nadu Municipalities Act cannot run in contrary to Article 300(A) of Constitution of India depriving the land owners from receiving appropriate compensation and claiming enhanced compensation depending upon the compensation fixed by the authorities. 21. It is seen from the records that the third respondent has published the resolution only in the District Gazette, which may or may not be circulated in the locality and not even come to the knowledge of the appellant, for him to object the same within 60 days. Whereas, the Land Acquisition Act which makes mandatory under Section 4(1) as well as 6 declaration to be published in the local dailies having circulation in the locality, so as to enable the land owners to be aware and appraised by the land acquisition authority about the acquisition of their land. 22. The third respondent has initiated proceedings under Tamil Nadu District Municipalities Act, 1920 which cannot take away the https://hcservices.ecourts.gov.in/hcservices/ 8 right of being entitled for compensation for the land being acquired or utilised as public street. 23. Reference made by the learned counsel for the appellant, various communications ever since 2001 and the orders passed by the Special Commissioner, Commissioner for Land Administration with regard to appellant's land would clearly go to show that the appellant has continuously knocking the doors of various authorities seeking compensation for the land acquired for the formation of public street. Sections 178 and 179 permit the third respondent to acquire the land under private negotiation, which does not mean and include dispensing due compensation payable to the land owners. The petitioner/appellant submits that No such private negotiation initiated by the authority. 24. For the foregoing discussions, we are of the view that the appellant is entitled for compensation from the third respondent for his land measuring 13 feet X 305 feet comprised in S.No.514/1C2 in Theni Municipality limit. 25. In such view of the matter, the petitioner is entitled to succeed in this Writ Appeal. Accordingly, the Writ Appeal is allowed. The third respondent is directed to pay compensation for the land acquired from the petitioner, fixing value on the date of resolution in resolution No.83, dated 29.05.1998 along with interest at 9% per annum till the date of payment. The entire exercise shall be completed within a period of four months from the date of receipt of a copy of this order. No costs. Sd/- Assistant Registrar(AS) /True copy/ Sub Assistant Registrar To 1. The District Collector, Theni District, Theni - 626 531. 2. The Municipal Commissioner, Theni-Allinagaram Municipality, Theni-626 531. +1cc to Mr.S.Natarajan, Advocate, SR.No.60582. +1cc to M/s.Hema Karthikeyan, Advocate, SR.No.60393. +1cc to Special Government Pleader, SR.No.60466. Judgment in W.A.(MD).No.1313 of 2014 10.04.2018 raja RAM/SV MMS/SAR 3/12.06.2018/8P/6C https://hcservices.ecourts.gov.in/hcservices/ "