Allowed

T.S.Balasubramanian, v. the Principal Secretary to

Madras HC30 Nov 2018WP(MD)/19307/2018

Case brief

AI extract

What is this about?

This writ petition challenged an order refusing compensation for restrictions on land under the Works of Defence Act, 1903. The Court held that the Collector is bound to assess compensation for restrictions under Section 7, regardless of non-use, and set aside the zero-compensation order, remitting the matter for a fresh determination.

What did the court decide?

The impugned order refusing compensation is set aside. The matter is remitted to the Collector to determine appropriate compensation within sixteen weeks.

T.S.Balasubramanian, Vs the Principal Secretary to — Land Acquisition | Madras HC (2018)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.11.2018 CORAM: THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN W.P.(MD)No.19307 of 2018

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1.T.S.Balasubramanian

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2.B.Sekar

3.B.Vasuki

... Petitioners

1.The Principal Secretary to Government, Ministry of Defence, Government of India, 101-A, South Block, New Delhi-110 011.

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2.The District Collector, Thanjavur District, Collectorate Complex, Coimbatore-Nagapattinam Highway,

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Thanjavur – 613 005.

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3.The Commanding Officer, Thanjavur Air Force Station, Inayathukkanpatti post, Thanjavur – 613 005. ...Respondents

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PRAYER: Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records relating to the impugned order issued by the second respondent in Na.Ka.No.I.1/1466/2016 dated 10.08.2018 and quash the same and consequently direct the respondents to pay the fair compensation payable to the petitioner for acquisition of the land measuring 6.70 acres in S.No.161/2 Nanjikottai Village, Thanjavur District as per Act 2013 with interest from the date of final declaration on 11.12.2015 till the date of payment.

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For Petitioners : Mr.C.Mahadevan For R1 : Mr.I.Irulappan For R2 : Mr.M.Rajarajan Government Advocate

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ORDER

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The writ petitioners are the joint owners of the land comprised in S.No.161/2, Nanjikottai Village, Tanjore District, measuring 6.70 acres. It was purchased vide sale deed dated 02.07.1966. An Air https://hcservices.ecourts.gov.in/hcservices/ Force Station came to be constructed in the vicinity and it has since become operational. The second respondent issued a

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notification under Section 3(2) of Works of Defence Act, 1903 imposing restriction on construction of buildings, structures or planting of trees within 100 metres from Indian Air Force Station, Tanjore.

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2.The lands belonging to the petitioners also fell within the purview of the said notification. In the said notification there are as many as 48 serial numbers, against which, the names of the owners have been mentioned. The petitioners are mentioned against Serial No.26. The petitioners, therefore submitted an application seeking compensation. Since, it was not taken up for consideration, they filed W.P.(MD).No.12604 of 2016 before the Madurai Bench of Madras High Court. By order dated 20.11.2017, the Hon'ble High Court directed the District Collector, Tanjore District to pass appropriate orders on merits within a period of six weeks. Pursuant to the aforesaid direction, the impugned order dated 10.08.2018 came to be passed. The second respondent has taken a stand that no compensation is payable to the writ petitioners. The said order is under challenge in this writ petition.

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3.Heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the Union of India as well the Government Advocate appearing for the second respondent.

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4.Right to property was originally a fundamental right guaranteed under Article 19(1)(f) of the Constitution of India. Though, the said provision was later deleted by the 44^th amendment, right to property continued to remain a constitutional right. Article 300(A) of the Constitution of India states that “ no person shall be deprived of his property save by authority of law ”. Deprivation does not mean taking away alone. If a man is forbidden from enjoying his property, that also amounts to a kind of deprivation. In this case, the petitioners own about 6 acres of land. It is true that they were purchased half a century ago. It is true that the petitioners have not put up any construction on the land in question. It does not mean that the land is of no use. A person can buy a property, keeping in view the potential for future development. In fact, a father can buy a land for the benefit of his son also. Merely because a land has not been used for 50 years, it does not mean it will never be put use. As the urban areas expand, the lands in the suburban areas gain value.

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5.By virtue of the impugned notification, the writ petitioners have been restrained from putting their property to use. They cannot put up buildings. They cannot even plant trees. In other words, the land will have to remain as such. Thus their valuable right to deal with the property has been totally taken away. Ofcourse, if public interest demands, the private rights will have to give away. The land of individuals can be acquired for public interest. But then, the person who is being deprived will have to https://hcservices.ecourts.gov.in/hcservices/ be compensated. That is why in all the provisions for land acquisition, there are provisions for determining the compensation

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payable to him. The competent authority will have to pass an award determining the compensation payable to the land owner. If the land owner is of the view that the compensation awarded is not adequate, he can always seek enhancement. Likewise, in the Indian Works of Defence Act, there are provisions providing for determining the compensation payable to the affected individuals. By notifying the land in question, under Section 3(2) of the Act, serious restrictions have been imposed on the land owners. The nature of restrictions are set out in the Section 7 of the Act. Section 12 of the Act reads as follows:

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“ 12.On the day fixed under Section 9 or on any other day to which the inquiry has been adjourned, the Collector shall proceed to inquire into the objections (if any) which any person interested has stated pursuant to a notice given under the said section to the measurements made under Section 8, and into the decrease in the value of the land, and into the respective interests of the persons claiming the compensation, and shall make an award under his hand of,- ”

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6.Section 12(b) of the Act, is particularly relevant for the present purpose. It speaks about “ the compensation which in the opinion of the Collector should be allowed for any damage caused or to be caused under Section 6 and for any restrictions imposed under Section 7 of the Act ”. Therefore, the Collector is bound to determine the compensation payable to the land owners for any restriction imposed under Section 7 of the Act. In this case, restrictions under Section 7 of the Act have been imposed on the petitioners. Therefore, the Collector ought to have determined the compensation payable to the petitioners.

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7.In this case, the Collector has quantified the amount as zero. I can only characterise the decision of the Collector as shockingly perverse. The Collector has not even bothered to take note of the statutory mandate set out in Section 12(b) of the Act. The Collector has observed that the land had remained barren for the last five decades. It may be so. Merely because no building was put up on the land in question when the notification was issued, it does not mean that the land owner has not suffered any damage. The District Collector was under the impression that since the land has not been physically taken away from the land owner, he need not be compensated. This exhibits total ignorance of the statutory scheme. Compensation is to be awarded when the land owner suffered a damage if restrictions are placed on the right to use the land. In this case, serious restrictions have been placed on the rights of the land owner to use the land.

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8.Therefore, the Collector is bound to award appropriate compensation. The second respondent has acted on a complete misconception of law. This Court has no hesitation to set aside the order impugned in this writ petition. The matter is remitted to the https://hcservices.ecourts.gov.in/hcservices/ file of the second respondent to determine the issue afresh and pass order on merits and in accordance with law within a period of

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sixteen weeks from the date of receipt of a copy of this order. 9.This writ petition is allowed accordingly. No costs.

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Sd/-

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Assistant Registrar(CS-II) /True Copy/

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Sub Assistant Registrar(CS-II)

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pnn

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1.The Principal Secretary to Government, Ministry of Defence, Government of India, 101-A, South Block, New Delhi-110 011. 2.The District Collector, Thanjavur District, Collectorate Complex, Coimbatore-Nagapattinam Highway, Thanjavur – 613 005. 3.The Commanding Officer, Thanjavur Air Force Station, Inayathukkanpatti post, Thanjavur – 613 005.

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1 CC TO Mrs.A.L.GANTHIMATHI , ADVOCATE IN SR No.98237.

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- 1 CC TO Mr.IRULLAPPAN, ADVOCATE IN SR No. 98003.

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• +1 cc to Special Government Pleader, SR.No.

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DS BK SAR2 19 12 2018 4P 7C W.P.(MD)No.19307 of 2018 30.11.2018

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https://hcservices.ecourts.gov.in/hcservices/

T.S.Balasubramanian, v. the Principal Secretary to

Case brief

What is this about?

What did the court decide?

T.S.Balasubramanian, v. the Principal Secretary to

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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