Mrs. Vasanthi Swapna V. Shah vs The Competent Authority and Special District, Revenue Officer, The General Manager (Technical) and Project Director, National Highways Authority of India and The Chairman

K.B.K. Vasuki, J.—On consent, the writ petition is taken up for final hearing at the admission stage.

The writ petition is filed against the order of the first Respondent pertaining to NHA1/13018/132/2009/PIU, Chennai/526 dated 19.03.2010 to

quash the same and to direct the Respondents to pay the sanctioned sum of Rs. 48,01,420/-for the demolition of superstructure bearing premises

No. 40, Mount Poonamallee High Road, Kathipara, Chennai-16 comprised in S. No. 435/1A.

According to the Petitioners, the land and the super structure upon the land did belong to the Petitioners and they become the owners of the

land by way of registered sale deed and after the purchase of the land, the Petitioners put up super structure upon the same under due permission

and approval and had been in possession and enjoyment of the same by letting it out to 3rd parties.

While so, the Government acquired both the land and the building for the purpose of grave separator at Kathipara Junction and the acquisition

proceedings was completed after following all other formalities. Thereafter, the building was taken over by the appropriate authority and the

building was demolished and the project was also completed. However, the dispute regarding the payment of compensation for the owners of the

land and the building acquired is yet to see its finality. The Petitioners have on the failure of the competent authority to pay any compensation to the

land and building separately come forward with the writ petitions W.P.13302 and 13304 of 2010 for directing the Respondents to pay the

compensation in respect of the land and building respectively. While the payment of compensation for the land is denied on the ground that the

Petitioners are not the owners the payment of compensation for the building which is admittedly put up by the Petitioner is also denied on the same

ground.

Heard the rival submissions made on both sides.

The writ petition filed against the non payment of compensation for the land is separately being dealt with. The present writ petition is against the

non payment of compensation to the building which is admittedly put up by the Petitioners. The competent authority has in his proceedings dated

26.04.2010 fixed the compensation for the building at Rs. 48,01,420/-and declared the Petitioners herein to be entitled to get the same and drawn

the cheque in their favour on 27.01.2010 and forwarded the same to the 2nd Respondent which is the requisitioning body for its counter signature

and approval. But, the 2nd Respondent has returned the same on the ground that the land upon which the building is put up by the Petitioners is

time barred lease land and the building constructed upon the same has no legal validity and the Petitioners should only be treated as encroachers of

the Government Poramboke land and it is disentitled to get any compensation for the building also. The correctness of such order is now seriously

challenged before this Court. Thus the only controversy raised in this writ petition is as to whether the person who is the owner of the super

structure is entitled to get the compensation pending dispute over the ownership of the land upon which the building is put up.

The learned senior counsel appearing for the Petitioners has cited the judgment of the Supreme Court reported in 2003 (1) CTC 235 in

Sharada Devi v. State of Bihar and others and the judgment of the Hon''ble Division Bench of our High Court following the Supreme Court

judgment reported in 2009 CIJ 857 Mad in District Collector, Salem and Ors. v. Siddheswaran and another wherein the Supreme Court and

Hon''ble Division Bench has dealt with identical issue. The observation of the Supreme Court and the Division Bench in the identical situation is

extracted as below:

In AIR 1942 35 (Privy Council) it was held that where the Government acquires and property consisting of land and buildings and where the

land was subject-matter of the Government, grant, subject to the power of resumption by Government at any time on giving one month''s notice,

then the compensation was payable only in respect of such buildings as may have been authorized to be errected and not in respect of the land.

In ''In the matter of the Land Acquisition Act: Govt. of Bombay v. Esufali Salebhai'' 34 Bom 618 (at page 636), Batchelor, J held that the

Government are not debarred form acquiring any paying for the only outstanding interests merely because the Act, which primarily contemplates all

interests as held outside Government, directs that the entire compensation based upon the market value of the whole land must be distributed

among the claimants. The Government was held liable to acquire and pay only for the super-structure as it was already the owner of the land

The question is, whether the first Respondent is entitled to any compensation. A portion of the building put up by the first Respondent in the

acquired land has been demolished and there was also trees in the land when it was acquired for laying the National Highway. In the decisions

referred to by the learned senior counsel, especially in Sharad Devi''s case (supra), the Supreme Court makes the difference between

compensation payble in respect of the land and in respect of the buildings and holds that where the Government is the owner of the land, payment

of compensation must be only for the superstructure. Therefore, we do not think that the order of the learned single Judge requires any

interference, but we clarify it and explain it in the following terms:

The first Respondent is not entitled to compensation for the land acquired, since he is not the owner thereof. But, he may be heard on the question

of compensation that is payable in respect of the building put up by him on the said land, for which he has also been paying property tax for several

years and the like. After so hearing him, it is open to the authorities to pass appropriate orders in accordance with law.

The Supreme Court has held that even if the Government is the owner of the land compensation must be paid to the super structure and has

accordingly up held the right of the owner of the super structure to get the compensation for the building in question.

That being the ratio laid down the order dated 19.03.2010 impugned herein in refusing to pay compensation for the building on the ground that

the land belonging to the Government is legally unsustainable and is liable to be quashed.

In the result, the order of the 1st Respondent dated 19.03.2010 is set aside and the Respondents 1 and 2 are directed to pay the

compensation of Rs. 48,01,420/-due to the Petitioners for the demolished premises bering No. 40, Mount Poonamallee High Road, Kathipara,

Chennai-16 comprised in S. No. 435/1A subject to fulfillment of statutory formalities if any for receiving compensation within four weeks from the

date of receipt of copy of this order. The Petitioners are given liberty to approach the authority concerned, in so far as their claim against deduction

of TDS.

The writ petition is allowed as prayed for. No costs.