IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.06..2011 CORAM: THE HONOURABLE MR. JUSTICE R.SUDHAKAR W.P. No. 7693 of 2008 ....... P. Pullaiyannan .. Petitioner Vs. 1.The District Collector, (Land Acquisition), Collector Office, Salem. 2. The Competent Authority, (Land Acquisition), NH 7 (Four laning), Salem.1. 3. The Special District Revenue Officer, (Land Acquisition), NH 7, 46 Salem, Dharmapuri District, (Stay) Krishnagiri. ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records relating to the orders of the first respondent dated on 22.1.2008 in Na.Ka.18443/2007 B2 and quash the same and direct the first respondent herein to fix the market value of petitioner's property at Rs.150/- (with interest) per square feet by considering all sale deeds executed on or before the date of 3A notification and further direct the first respondent to hold proceedings before his presence and to pass orders as per Sec.3G (7) of National Highways Act 1956. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. M. Elango For Respondents : Ms. V.M.Velumani Spl. Govt. Pleader ORDER This writ petition is filed to call for the records relating to the orders of the first respondent dated on 22.1.2008 in Na.Ka.18443/2007 B2 and quash the same and direct the first respondent herein to fix the market value of petitioner's property at Rs.150/- (with interest) per square feet by considering all sale deeds executed on or before the date of 3A notification and further direct the first respondent to hold proceedings before his presence and to pass orders as per Sec.3G (7) of National Highways Act 1956. 2. This writ petition is filed challenging the award of the Arbitrator viz., District Collector. In a case of this nature, this Court would not have normally interfered with the award passed by the Arbitrator/ District Collector in view of the specific provisions under the National Highways Act and the Arbitration and Conciliation Act 1986, which provides for an appeal to the High Court against the order passed by the Arbitrator/ District Collector. But in the peculiar facts and circumstances of this case wherein the order passed by this Court in the writ petition filed earlier has been breached by the authority forcing this Court to interfere with the award on a limited issue as hereunder. 3. The brief facts are as follows:- The petitioner's land to an extent of 114 sq.meter comprised in S.No.114/3A,2A,1A of Kottamettupatti Village, Omalur Taluk, Salem District. The acquisition was made by issuing a notification under Section 3A(i) of the National Highways Act 1956 and the notification was published in the Government of India Gazette on 3.5.2002. The notification under Section 3(D)(i) of the Act was issued and published in the Government of India Gazette on 13.3.2003. The notification under Section 3G (iii) of the Act was published in Tamil daily viz., 'Dina Thanthi' and the English daily 'The Hindu' on 26.4.2003 and the award was passed by the competent authority viz., Special District Revenue Officer (Land Acquisition) National Highways, Krishnagiri on 31.10.2003. The petitioner filed a petition before the Arbitrator, which was not disposed of and therefore, he filed a writ petition in WP No. 8479 of 2006 and pursuant to the order passed by this Court , the first respondent/ District Collector/Arbitrator passed an award in Na.Ka.AAVA.No.186/B1, dated 15.2.2007. Before the Arbitrator, the petitioner filed eight documents in support of his plea for higher compensation. Out of eight sale documents, seven documents are dated prior to the notification issued under Section 3 A(i) of the Act. The https://hcservices.ecourts.gov.in/hcservices/ documents are of the year 1986, 1990, 1997, 2000 and 2001. After considering the order of the competent authority, the objection filed by the petitioner and the documents relied upon by the petitioner, the first respondent passed an award confirming the order of the competent authority and rejected the petitioner's claim for higher compensation. While doing so, the Arbitrator rejected the seven documents relied upon by the petitioner holding as follows:- " kDjhuuhy; rku;g;gpf;fg;gl;l Mtz';fs; midj;Jk; Vw;fdnt epu;zak; bra;ag;gl;l 1/7/2001 Kj;y 30/6/2002 tiuapyhd fhyj;jpw;Fs; fpua';fs; gjpt[ bra;ag;glhjjhy; mit midj;Jk; cah;kjpg;gPL bra;a Vw;w Mtz';fshf fUj ntz;oajpy;iy.@ (i.e.) to state that the documents were not registered during the period 1.7.2001 to 30.6.2002 and therefore are not relevant for considering the claim for higher compensation. 4. Challenging the order of the Arbitrator, the petitioner filed WP No. 11284 of 2007 and after hearing the petitioner as well as the respondents, more particularly, the District Collector, who had filed the counter, the Court passed the following order:- " It is seen from the impugned order that the petitioner has produced altogether eight documents in which the last document No.805/2003, dated 16.3.2003 is after the notification under Section 3A of the Act, the other 7 documents are relating to the period from 24.4.1997 to 12.3.2001, wherein the properties were sold at Rs.699.40, 107.64, 864/-, 22.63, 15155, 1020 respectively. However, the details are furnished either by the petitioner or by the respondents to show as to whether the said lands relating to the said documents are adjacent to the petitioner's land or not. It is argued by the learned counsel for the petitioner that the lands covered under the said documents are adjacent to the petitioner's property. In view of the fact that the petitioner produced the documents to establish the market value prevailing prior to the notification under Section 3A of the Act, as stipulated in section 3G(7) of the Act, this Court is of the view that the said documents could have been taken into consideration by the first respondent to fix value of the petitioner's property, which it has failed and no valid reasons assigned by the first respondent for not considering those documents, hence the impugned order is set aside, the matter is remanded back to the first respondent for fresh consideration. The first respondent is directed to hear the petitioner and https://hcservices.ecourts.gov.in/hcservices/ consider the documents and pass orders afresh within a period of eight weeks from the date of receipt of copy of this order." 5. This order setting aside the award was accepted by the authority and the matter was heard once again and the present impugned award in Na.Ka.No.18443/07/B2/ dated 22.1.2002 has been passed. The arbitrator/ first respondent rejected the petitioner's plea for enhancement and confirmed the compensation fixed by the competent authority. 6. The present writ petition has been filed by the petitioner stating that the specific direction of this Court to consider seven documents have been deliberately and knowingly ignored by the first respondent by placing reliance on the report of the Special District Revenue Officer. The first respondent refused to go into the merits of the seven documents furnished by the petitioner without any justification. This is contrary to the specific nature of the order passed by this Court and hence the impugned award is bad and suffers from vice of arbitrariness and non application of mind. 7. The petitioner further pleads that except making a reference to those documents stating that they were considered, there is nothing in the order to show that the authority has applied his mind to those documents in the light of the specific order passed by this Court in WP No. 11284 of 2007 dated 29.10.2007. 8. On notice, the first respondent has filed a counter affidavit and the relevant portion of the counter affidavit i.e. paragraphs 9,10 and part of 11, reads as follows:- "( para-9.) Regarding para-7, aggrieved by the orders passed by the Arbitrator-cum-Collector, Salem in his proceeding Roc.18443/2007/B2, dated 22.1.2008, the petitioner had filed a writ petition in W.P.No. 11284/2007. This Honourable Court vide order dated 29.10.2007 directed the first respondent to hear the petitioner and consider the documents and pass order afresh within a period of eight weeks from the date of receipt of copy of the order. As directed by this Honourable Court, a fresh enquiry was conducted on 21.1.2008 and the document produced by the petitioner were perused and order was passed on 22.1.2008 confirming the earlier order. Hence, it is not correct to say that the direction of this Honourable Court, was not followed. 10. Regarding para 8, the direction of the order dated 29.10.2007 passed by this Honourable Court in W.P.No.11284/2007 was followed and the order was passed by https://hcservices.ecourts.gov.in/hcservices/ the Arbitrator cum District Collector, Salem in his proceeding Roc.18443/2007 (B2), dated 22.1.2008 as there was no merit in the document produced by the petitioner. The sale deeds produced by the petitioner were registered before the 3A Notification and not registered between the period from 1.7.2001 to 30.6.2002. As there were suitable sales to fix the value of the land of the petitioner, the other lands were not considered. The value of the land under acquisition will be fixed only with reference to the guideline passed by the Government and not by the individuals on his own choice. 11. Regarding para 9, in order to fix the market value of the land under acquisition the sales statistics for the period from 1.7.2001 to 30.6.2002 i.e. one year preceding to the publication of Section 3A(3) notification were gathered from the Sub-Registrar Office, Omalur Taluk, Salem District. During the above period 110 sales were registered relating to Kottamettupatti Village, Omalur Taluk." 9. Ms. V.M.Velumani, Special Government Pleader contended that the authorities have proceeded on the basis of the guidelines of the Government and therefore, the documents, which are one year prior to the notification issued under Section 3A(i) alone were considered and the other documents were not considered. 10. The impugned order of the first respondent deserves to be interfered with only on the ground that there has been a deliberate and conscious non application of mind coupled with total arbitrariness in the approach. The specific directions of this Court has been ignored. If the authority had considered the seven documents as directed by this Court, then there would not have been any reason for this Court to interfere and the petitioner would be directed to approach the appellate forum. But in this case, the first respondent has simply referred to the report of the Special District Revenue Officer (Land Acquisition) for not considering the documents. The order does not spell out the reason as to why the first respondent does not consider the documents filed by the petitioner. The first respondent has merely referred to the earlier order of this Court dated 29.10.2007 in W.P.No.11284 of 2007 and the documents and stated that the Special District Revenue Officer (Land Acquisition) has reported that the documents referred to by the petitioner are not registered during the period from 1.7.2001 to 30.6.2002 and has therefore refused to consider it. This statement of the Special District Revenue Officer (Land Acquisition) is found in the earlier award dated 15.2.2007 and has already been extracted above and rejected by the Court. On the contrary a specific direction was issued to consider the seven documents. It is therefore, clear that the arbitrator has proceeded merely on the basis of the report of the Special District Revenue Officer (Land Acquisition), who has stated that the documents registered between 1.7.2001 to 30.6.2002 alone can https://hcservices.ecourts.gov.in/hcservices/ be considered for determining the compensation over looking the specific order of the Court passed in the earlier writ petitions. The stand of the Special District Revenue Officer (Land Acquisition) was earlier considered and rejected by this Court. A specific direction was issued to consider all the documents more particularly, the seven documents furnished by the petitioner. That direction has not been obeyed. Further more, the first respondent clearly accepts in the impugned order that the Survey Numbers contained in the seven documents furnished by the petitioner are very close to the land of the petitioner, which has been acquired. In the impugned order, it is stated that the properties relating to those documents were inspected on 22.1.2008. But, there is nothing in the order to show that the seven documents were considered on merits as there is no discussions on it. There is not even a finding by the first respondent as to whether he accepts those documents or rejects the same. All that is stated in the impugned order is the opinion of the Special District Revenue Officer (Land Acquisition). It amounts to abdication of his function. 11. In the counter affidavit, guidelines of the Government have been referred to and that is not mentioned in the impugned order. Section 3G(7) of the National Highways Act provides for determination of the amount payable as compensation and it reads as follows:- 3G(7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub- section (5), as the case may be shall take into consideration-- (a) the market value of the land on the date of publication of the notification under section 3-A; (b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land; © the damage, if any, sustained by the person interested at the time of taking possession of the land by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earning; (d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change." 12. Since the Act provides for determination of the compensation on the basis of the market value of the land on the date of publication of notification under Section 3 A, it is not clear as to why the first respondent has failed to look into those seven documents, which are admittedly prior to the notification. Since there is a specific direction by this Court in the earlier order and such order was accepted by the first respondent, the non consideration of the https://hcservices.ecourts.gov.in/hcservices/ seven documents clearly establishes the arbitrariness on the part of the first respondent and total non application of mind and therefore, the impugned proceedings deserves to be interfered. The statement in the counter affidavit that the value of the land under acquisition will be fixed only with reference to guidelines issued by the Government is an untenable stand as it will run contrary to the Act. The very purpose of petitioner participating in the award enquiry will become an empty formality. The valuable right of the land owner cannot be denied and buried in the name of guidelines, which apparently has no statutory force and respondents have not established so. 13. In such view of the matter, since the authority has failed to comply with the direction of this Court passed in the earlier writ petition and has failed to consider those documents inspite of the specific direction issued therein, this Court is constrained to set aside the order and remand the matter to the first respondent to consider the petitioner's claim in the light of the order passed by this Court dated 29.10.2007 in W.P.No.11284 of 2007, which has already been extracted above. The authority is bound to pass a reasoned order on all issues in terms of the direction issued by this Court referred to above. This writ petition is allowed by way of remand. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ra To 1.The District Collector, (Land Acquisition), Collector Office, Salem. 2. The Competent Authority, (Land Acquisition), NH 7 (Four laning), Salem.1. https://hcservices.ecourts.gov.in/hcservices/ 3. The Special District Revenue Officer, (Land Acquisition), NH 7, 46 Salem, Dharmapuri District, (Stay) Krishnagiri. +1cc to Mr.M.Elango, Advocate Sr 34893 +1cc to Govt. Pleader Sr 34977 NM(CO) km/30.6. WP No.7693 of 2008 https://hcservices.ecourts.gov.in/hcservices/