N.R. Krishnamoorthy Raja vs The Special Commissioner and Commissioner for Land Administration

S. Nagamuthu, J

The petitioner claims to be the owner of the land measuring 13 ft. x 149 ft. comprised in S. No. 514/1C2 in Theni Municipal Limits. According to the petitioner, when he constructed a building in his property, he left the above said property as a private pathway to reach his house. On either side of the said property, one Mr. N.L.R. Jeyasekaran constructed a cinema theatre in his land comprised in S. No. 515/2. While claiming approval for the same, he had shown the land pertaining to the petitioner comprised in S. No. 514/1C2 as a public road. The petitioner objected to the same. Finally, the Municipality passed a Resolution to take over the said land measuring 13 ft. x 149 ft. in S. No. 514/1C2 and the same has been declared as a public street. Now the petitioner claims that he is entitled for compensation, because, the land originally belonged to him. He further stated that though the land was not taken over under the provisions of the Land Acquisition Act, the petitioner is entitled for compensation as per G.O. Ms. No. 885, Revenue Department, dated 21.09.1995. Since the compensation had not been so far paid for the said land taken over by the Municipality, the petitioner has come forward with this writ petition, seeking appropriate direction to the respondents to pay compensation.

In the counter filed by the Commissioner, Theni Allinagaram Municipality, it is stated in paragraphs 6 to 9 as follows:

6.I further submit that as per instruction of Government in G.O. Ms. No. 59, Cinema Department, dated 2-4-1998 and the land owners in S.F. No. 514/pt and 515/2 had applied to the 3rd respondent to take over the said road into Municipal possession, accordingly, the municipal council resolved in resolution in MCR No. 83 dated 25-05-1998 that the road portion lies in S.F. No. 514/pt may be declared as public, for that sake, the 3rd respondent notified necessary notification in Theni District Gazette on 19-07-1998 calling objection and suggestion from the general public about the road portion taken for municipal maintenance within 60 days.

It is submitted that after expiry of 60 days no objection and suggestion were received from any one. The Municipal Council in its Resolution No. 478 dated 19-03-1999, the said road has been declared as municipal road.

It is submitted that the 3rd respondent followed necessary procedure as laid down in the Tamil Nadu District Municipalities Act, 1920, under Section 179 it states the Right of owner to require street to be declared public if any street has been levelled, paved, mattelled, under the provisions of Sec. 178 such street shall on the requisition of not less than three fourth of the owners thereof be declared a public street.

Under Sec. 178 it states the power of Executive Authority to order work to be carried out or carry it out himself in default, if any private street or part thereof is not levelled, paved, mettalled, flagged, channeled, drained, conserved or lighted or abutting on such street or part thereof to carry out any work which in his opinion.?

I have heard the learned counsel for the petitioner, the learned Government Advocate appearing for respondents 1 and 2 and the learned counsel appearing for the third respondent and also perused the records carefully.

Admittedly, the land in question was not taken over under the provisions of the Land Acquisition Act. Though the learned counsel for the petitioner would submit that the petitioner is entitled for compensation as per G.O. Ms. No. 885, referred to above, I am of the view that the said Government Order is not at all applicable to the petitioner. G.O. Ms. No. 885 empowers the authorities to go in for private negotiation with the owners of the land for taking over the land for public purpose, arrive at the compensation by means of private negotiation and then to take over the said land. If any such negotiation had been arrived at, then the negotiated amount should be paid by the Government to the land owner. Here, in this case, it is not at all the case of the petitioner that there was any such private negotiation to take over the said land and that the compensation was arrived at. Therefore, G.O. Ms. No. 885 is not applicable to the petitioner.

Referring to the counter, the learned counsel for the respondents submitted that as per G.O. Ms. No. 59, Cinema Department, dated 02.04.1998, the land owners in S.F. Nos. 514/1C2 and 515/2 had applied to the third respondent to take over the said land and the Municipal Council resolved a Resolution dated 25.05.1998 and declared by means of a Notification in the District Gazette on 19.07.1998 calling for objections for such taking over. Within 60 days, the petitioner did not make any objection. Therefore, as provided under Section 178 of the Tamil Nadu District Municipalities Act, the District Municipality carried out works to level the road and thereafter, as provided under Section 179, a declaration was made that it would be a public street. Under the Tamil Nadu District Municipalities Act, there is no provision for payment of compensation for such declaration made under Section 179 of the Act.

But the learned counsel for the petitioner would submit that as per Article 300A of the Constitution of India, no person shall be deprived of his property except by authority of law, and therefore, when the land is taken over by the Government without following the due procedure, then, compensation has to be paid to the owner immediately as per the market value. It has been so held in the Division Bench judgment of this Court in The Corporation of Madras Vs. J. Periyanayaki, The Commissioner, Hindu Religious and Charitable Endowments and The Executive Officer, .

I have gone through the said judgment. That was a case where the land belonging to a temple known as Arulmighu Periyapalayathammal Temple was taken over by the Government as per a Government Order. The land was no-more useful for the temple. But even while taking over, a condition was imposed that compensation to the temple shall be paid through the Commissioner, Corporation of Chennai, by the District Collector. It was in those circumstances, the Division Bench directed payment of compensation to the land owner in terms of the said G.O. But in the case on hand, there is absolutely nothing on record to show that there was any such undertaking given by the Municipality to pay compensation to the petitioner. Therefore, this judgment is also not applicable to the petitioner.

Above all, if the petitioner has got any right to claim compensation, it is for him to work out his remedy before the Civil Court. In this writ petition, it is not possible to resolve the above disputed questions of fact and to arrive at the market value of the property.

In view of all the above, the writ petition fails and accordingly it is dismissed. No costs.