IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30/06/2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.6823 OF 2008 N.Kandasamy ... Petitioner Versus 1.The Engineer in Chief (WRO) cum the Chief Engineer (General) Public Works Department Chepauk, Chennai – 600 005. (Cause title amended as per Court order dated 13.08.2008 in M.P.No.1/2008 in W.P.No.6823/2008) 2.The Chief Engineer, (WRO) Public Works Department Chennai Region, Chepauk, Chennai – 600 005. 3.The Special Tahsildar (Land Acquisition) Krishna Water Supply Project Thiruvallur. (R3 impleaded as per order dated 10.06.2009 in M.P.No.1/2009 in W.P.No.6823/2008) ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus, directing the respondents herein to pay compensation to the petitioner as per the existing market value with interest @ 12% per annum for the agricultural lands encroached upon by the respondents department for completing the Krishna Water Supply Project to an extent of 2.56 acres out of 3 acres comprised in dry survey No.52/2 situated at No.15, Kunjaram Village, Uthukottai Taluk, Thiruvallur District. For Petitioner : Mr.A.R.Suresh https://hcservices.ecourts.gov.in/hcservices/ For Respondents: Mr.R.Ravichandran Additional Government Pleader for Mr.M.C.Swamy Special Government Pleader O R D E R The petitioner filed the present writ petition seeking to direct the respondents to pay compensation as per the existing market value with interest at 12% per annum for the agricultural lands encroached by the respondents for completing the Krishna Water Supply Project to an extent of 2.56 acres out of 3 acres comprised in dry Survey No.52/2, situated at No.15, Kunjaram Village, Uthukottai Taluk, Thiruvallur District. 2.When the writ petition came up on 25.03.2008, this Court directed the learned Government Advocate to take notice. Subsequently, the petitioner impleaded the Special Tahsildar (Land Acquisition), Krishna Water Supply Project, Thiruvallur as third respondent. Thereafter, by an order dated 18.09.2009, an Advocate Commissioner was appointed to inspect the property in question and to find out whether the lands have been encroached by the respondents or not. 3.The Advocate Commissioner has filed a report dated 08.10.2009. In the report, he has made an observation that a Jeep Track adjacent to the Canal in the acquired lands for the Project was only running for a short distance and was not fully laid and it cannot be used to monitor the project. The jeep track had to be accessed only from the petitioner's property. He has also filed a map prepared by him. 4.The respondents have filed a counter affidavit dated Nil September 2009 denying encroachment in the said land. In the counter affidavit, in paras 11, 12 and 13, it was averred as follows:- "11..... it is submitted that the petitioner is barred by law to coerce the respondent department to pay compensation for the land which was not at all acquired or encroached by the respondent department. Even now it could be seen the land is distinguishably demarcated as to the boundary of the limit of the canal and that of the land of the petitioner. When the land is not used by the respondent department nor there is any need https://hcservices.ecourts.gov.in/hcservices/ for using the land, the respondent department is not liable to pay any compensation to the petitioner. As sufficient extend of the land is available along the two berms of the canal there is no necessity to acquire any portion of the land in S.F.No.52/2B of Kunjaram Village in Uthukottai Taluk of Thiruvallur District. There were no trees of any species and there was also no trace of existence of the trees in the said land previously. Hence it is submitted that there evidently could not have been any motive behind any rejection of the petitioner's claim for compensation when no portion of the land was either acquired or encroached. 12.As regard the averments contained paragraph in grounds (h) & (i), it is submitted that the Special Tahsildar (LA) was right in his stand that he could not do anything for the petitioner as no portion of his land was acquired. This respondents are also helpless as there has been no encroachment as alleged by the petitioner herein. The onus of proof lies with the portion who affirms and the petitioner has no material evidence has to any part of the land has been encroached. The mere relying on the metal road vaguely in his which was stated as encroachment by the petitioner is also denied that the road was not laid by the respondent department and there is no need for laying the road on the land of the petitioner when a separate jeep track has been formed by the respondent department during the project itself for departmental use. 13.It is therefore submitted that the petitioner is barred by law to advance his attributed grievance which is entirely of civil in nature by invoking the writ jurisdiction of this Hon'ble Court. It is again submit that the no portion of the land in S.F.No.52/2B of Kunjaram Village in Uthukottai Taluk of Thiruvallur District has either been acquired or encroached upon by the respondent department and hence no compensation is payable to the petitioner herein. " https://hcservices.ecourts.gov.in/hcservices/ 5.The Executive Engineer, Krishna Water Supply Project, Division–I has filed objections to the report of the Advocate Commissioner and also filed a map of the area, which is different from the map produced by the Advocate Commissioner. In the objection, it was stated that the jeep track was formed by the respondent Department during the execution of the Project itself only for the departmental use that too in the acquired portion only and the Department was not interested in encroaching the property of the petitioner. The land of the petitioner in S.No.52/2B can be clearly demarked and the petitioner can always take possession of his land. 6.When the respondents have taken a stand that they have not encroached the property of the petitioner and the land was also not acquired by them, the issue raised by the petitioner cannot be gone into in a Writ Petition under Article 226 of the Constitution of India. 7.It must be noted that the Supreme Court vide its judgment in GODAVARI SUGAR MILLS LIMITED VS. STATE OF MAHARASHTRA AND OTHERS reported in 2011 (2) SCC 439 had observed as follows: "8.... (i) Normally, a petition under Article 226 of the Constitution of India will not be entertained to enforce a civil liability arising out of a breach of a contract or a tort to pay an amount of money due to the claimants. The aggrieved party will have to agitate the question in a civil suit. But an order of payment of money may be made in a writ proceeding, in enforcement of statutory functions of the State or its officers. (vide Burmah Construction Co. v. State of Orissa.) (v) It is one thing to say that the High Court has no power under Article 226 of the Constitution to issue a writ of mandamus for making refund of the money illegally collected. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. For instance, where the facts are not in dispute, where the collection of money was without the authority of law and there was no case of undue enrichment, there is no good reason to deny a relief of refund to the citizens. But even in cases where https://hcservices.ecourts.gov.in/hcservices/ collection of cess, levy or tax is held to be unconstitutional or invalid, refund is not an automatic consequence but may be refused on several grounds depending on facts and circumstances of a given case. (vide U.P. Pollution Control Board V. Kanoria Industrial Ltd.)" 8.In the light of the serious dispute regarding the entitlement of the petitioner, it is not a fit case where any relief can be given to the petitioner in a Writ Petition under Article 226 of the Constitution of India. Hence, the writ petition stands dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. TK To 1.The Engineer in Chief (WRO) cum the Chief Engineer (General) Public Works Department Chepauk, Chennai – 600 005. 2.The Chief Engineer, (WRO) Public Works Department Chennai Region, Chepauk, Chennai – 600 005. 3.The Special Tahsildar (Land Acquisition) Krishna Water Supply Project Thiruvallur. 1 cc to Mr.A.R. Suresh, Advocate, Sr. 38148 1 cc to Government Pleader, Sr. 38683 W.P.NO.6823 OF 2008 BVR (CO) kk 15/7 https://hcservices.ecourts.gov.in/hcservices/