M. Mohan vs The State Government Of Tamil Nadu

IN THE SUPREME COURT OF INDIA EXTRA­ORDINARY APPELLATE JURISDICTION Petition(s) for Special Leave to Appeal (C) Nos. 12616­17/2022

M. Mohan …Appellant(s)

Versus

The State Government of Tamil Nadu & Ors. …Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned

common judgment and order dated 22.03.2022 passed by

the High Court of Judicature at Madras in Writ Appeal Nos.

2169 and 2170 of 2021, by which, the Division Bench of

the High Court has dismissed the said appeals and has

confirmed the judgment and order passed by the learned

Single Judge in respective writ petitions, the original writ Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2022.09.02 18:03:48 IST Reason: 1 petitioner – original land owner has preferred the present

Special Leave Petitions.

2. That the lands in question owned by the petitioner herein –

original land owner were required to construct Grade

Separators on Periyar EVR Salai near Aminjakari, Nelson

Manickam Road Junction and Anna Nagar 3 rd Avenue

junction, for the purpose of constructing a Flyover and

Subway in the said location. The said lands were acquired

under the provisions of the Tamil Nadu Highways Act, 2001

(hereinafter referred to as the Act, 2001). That a notice

under Section 15(2) of the Act, 2001 was issued inviting

objections of owners and any other person having interest in

the lands to be acquired to show cause as to why the lands

may not be acquired. The petitioner herein – original land

owner submitted his detailed objections and the notices

were also sent to the highways authorities/department of

the division concerned. According to the State, after

considering the objections raised by the original land owner

on the report submitted by the highways authorities, a

notification under Section 15(1) of the Act, 2001 was issued.

The original land owners being aggrieved with the

2 notification issued under Section 15(1) of the Act, 2001 filed

writ petitions before the High Court contending, inter­alia,

that the notification under Section 15(1) of the Act, 2001 is

in violation of the procedure to be followed under Rule 5 of

the Tamil Nadu Highways Rules, 2003 (hereinafter referred

to as the Rules, 2003). It was the case on behalf of the

original writ petitioner that Rule 5 lays down the manner for

publication of the public notice and the manner of

conducting the enquiry. According to the original writ

petitioner, before publishing a notice under Section 15(1),

the Government or Collector or Special Deputy Collector

shall call upon the owner and any other person having

interest in the land to show cause as to why the land may

not be acquired. If objections are received from a person

interested in the land, the Government or Collector or

Special Deputy Collector shall fix a date for hearing the

objections and give notice thereof to the objector as well as

to the Highways Department. According to the original land

owner, thereafter the Highways Department shall file, on or

before the date fixed by the Government or Collector or

Special Deputy Collector a statement by way of an answer

3 or response to the objections and may also depute a

representative to attend the enquiry and thereafter the

Government or Collector or Special Deputy Collector shall

hear the objector and the Highways Department and record

any evidence that may be produced by either party and on

completion of the enquiry, the Collector shall submit all

details of the enquiry to the Government to pass an order

under sub­section (3) of Section 15. According to the

original writ petitioner without waiting for the response from

the Highways Department and without giving any

opportunity of being heard to the objectors, the notification

under Section 15(1) of the Act, 2001 has been issued, which

is in clear violation of Rule 5 of Rules, 2003.

2.1 On the other hand, it was the case on behalf of the State

that the notifications under Section 15(1) of the Act, 2001

was issued after considering the report of the Collector on

the objections submitted by the original land owners and

even the response from the Highways Department was

received. That the learned Single Judge by a detailed

judgment and order dismissed the writ petitions by

observing that the notification under Section 15(1) of the

4 Act, 2001 was followed by a detailed enquiry and after

considering the objections raised by the original land

owners. The learned Single Judge opined that there was

substantial compliance and there is no illegality committed

in issuing the notification under Section 15(1) of the Act,

2001.

2.2 Feeling aggrieved and dissatisfied with the judgment and

order passed by the learned Single Judge dismissing the

writ petitions, the original writ petitioner filed writ appeal(s)

before the High Court. By the common impugned judgment

and order, the Division Bench of the High Court has

dismissed the said appeal(s) which has given rise to the

present Special Leave Petitions.

3. Shri Huzefa A. Ahmadi, learned Senior Advocate has

appeared on behalf of the petitioner – original land owner. It

is vehemently submitted by Shri Ahmadi that in the present

case before issuing notification under Section 15(1) of the

Act, 2001, the procedure required to be followed under Rule

5 of the Rules, 2003, which was required to be strictly

followed, have not been followed.

5 3.1 Shri Ahmadi, learned Senior Advocate appearing on behalf

of the petitioner has submitted that before issuing a

notification under Section 15(1), the following procedure as

per Rules 5(2) and 5(3) shall have to be strictly followed: ­

(i) State’s delegated authority receives objections of

the land owner ­ Rule 5(2);

(ii) State’s delegated authority fixes a date for

hearing the objections and gives notice thereof to

the objector and the requisitioning authority ­

Rule 5(2);

(iii) Copy of the land owner’s objections shall be

forwarded to the requisitioning authority ­ Rule

5(2);

(iv) On the date fixed for enquiry, the State shall

hear the objector and the representative of the

requisitioning authority, if any and record

evidence ­ Rule 5(3);

(v) On or before the date fixed for hearing, the

requisitioning authority may submit an answer

statement to the objections ­ Rule 5(2)

It is submitted that in the present case, without

waiting for any response from the Highways

Department/authorities to the objections raised by the

6 original land owner, notification under Section 15(1) of the

Act, 2001 has been issued.

3.2 It is further submitted that in the present case the

acquisition of the petitioner’s land was sought to be done in

two parts. While in the first part, the petitioner’s objections

were submitted on 15.12.2010. However, the requisitioning

authority’s (Highways Department) response thereto was

sent only on 25.01.2011 – a month after the enquiry was

superficially held on 24.12.2010. It is contended that the

aforesaid is in clear violation of the procedure envisaged

under the Rules. It is submitted that having forwarded the

objections to the requisitioning authority seeking for its

comments, the enquiry ought not to have been held prior to

receipt of the comments. That even after receiving of the

comments of the requisitioning authority, post the

superficial enquiry, the same were not provided to the

petitioner and/or no fresh enquiry was conducted

thereafter, prior to the issuance of notification under

Section 15(1) of the Act, 2001. That if such comments were

provided to the petitioner, he would have been in a better

position to place before the State, inter­alia, that his

7 objections were not properly considered and/or that the

response of the requisitioning authority did not respond to

his specific objections; the response was faulty, incorrect,

etc. It is submitted that therefore, the petitioner was

deprived of a meaningful enquiry under the Act and Rules,

thereby causing grave prejudice to him.

3.3 It is submitted that meanwhile, in case of the acquisition

under the second part, the petitioner submitted his

objections on 15.12.2011, and the enquiry was superficially

held on 15.12.2011 itself. It was an empty formality.

Therefore, for the second part of the acquisition, the

petitioner’s objections were never forwarded to the

requisitioning authority, which is a mandatory requirement

as per Rule 5(2). Further, there was no notice fixing a date

for hearing of objections under Rule 5(2) and the hearing

was held on the same day the objections were required to be

submitted, which is also contrary to Rules.

3.4 It is submitted that even otherwise a perusal of the

responses given by the requisitioning authority shows

identical and mechanical responses it gave in response to

8 all objectors, thereby clearly showing non­application of

mind.

3.5 It is further contended by Shri Ahmadi, learned Senior

Advocate appearing on behalf of the petitioner that as such

the Division Bench of the High Court has materially erred in

not considering and/or in holding that Rules 5(2) and 5(3)

are to be ignored as they are not in conformity with Section

15(2) of the Act and therefore not enforceable. It is urged

that there was no occasion for the Division Bench of the

High Court to hold so, more particularly, when these Rules

were duly framed and placed before the Legislative

Assembly and issued, and have stood the test of time. It is

submitted that their vires have never been questioned and

the State has been following the Rules without demur. That

the High Court ought to have appreciated that the

procedure set down by these Rules are a safeguard against

arbitrariness, and protect the expectation of fair

adjudication. Reliance is placed on the decision of this

Court in the case of State of Mysore & Ors. Vs. V.K.

Kangan & Ors.; (1976) 2 SCC 895 wherein it is held by

this Court that there is no conflict between Rule 3(b) of the 9 Tamil Nadu Land Acquisition Rules and Section 5A(2) of the

Land Acquisition Act, 1894. It is submitted that the said

Rule 3(b) is similar to the present Rule 5(2).

3.6 Making the above submissions it is prayed to set aside the

impugned judgment(s) and order(s) passed by the High

Court and consequently to set aside the acquisition.

4. Heard Shri Huzefa A. Ahmadi, learned Senior Advocate,

appearing on behalf of the petitioner.

4.1 That the petitioner herein – original writ petitioner before

the High Court challenged the acquisition of lands in

question which were acquired under the provisions of the

Tamil Nadu Highways Act, 2001. The acquisition was

challenged, inter­alia, on the ground that the procedure

required under Rule 5 of Rules, 2003 has not been followed

and while considering the objections raised by the petitioner

– land owner the opinion of the highways authorities of the

division concerned was not considered and also on the

ground that before issuing notification under Section 15(1)

of the Act, 2001, the objections of the land owner were not

properly considered. That the learned Single Judge

dismissed the writ petitions observing that there was a

10 substantial compliance of the procedure as required to be

followed under Rule 5 of Rules, 2003 inasmuch as the

objections raised by the petitioner – original land owner,

were specifically dealt with and considered before issuing

the notification under Section 15(1) of the Act, 2001.

However, while affirming the judgment and order passed by

the learned Single Judge, the Division Bench of the High

Court has further observed that Rule 5(2) to Rule 5(3) is not

in consonance with Section 15(2) and therefore, it is to be

ignored.

5. While appreciating the submissions made by Shri Ahmadi,

learned Senior Advocate, appearing on behalf of the

petitioner, Section 15 of the Act, 2001 and Rule 5 of Rules,

2003 are required to be referred to and considered, which

are as under: ­

“TAMILNADU HIGHWAYS ACT, 2001

Section 15. Power to acquire land:

(1) If the Government are satisfied that any land is required for the purpose of any highway or for construction of bridges, culverts, causeways or other structures thereon or for any purpose incidental or ancillary thereto, in furtherance of the objects of this Act, they may acquire such land by publishing in the Tamil Nadu Government Gazette a notice specifying the description of such land and the particular purpose for which such land is required.

11 (2) Before publishing a notice under Sub­section (l), the Government shall call upon the owner and any other person having interest in such land to show cause within such time as may be specified in the notice, why the land should not be acquired. The Government shall also cause a public notice to be given in such manner as may be prescribed.

(3) The Government may, after considering the cause, if any, shown by the owner or other person having interest on such land, pass such an order under sub­ section (1), as they may deem fit.”

“TAMIL NADU HIGHWAYS RULES, 2003

5. Manner of publication of the public notice. ­ Before publishing a notice under sub­section (1) of section 15, the Government or the Collector or the Special Deputy Collector (Land Acquisition), Tamil Nadu Urban Development Project III, as the case may be shall in addition to calling upon the owner and any other person having interest in the land to show cause as to why the land should not be acquired, shall also cause a public notice to that effect to be published in one English and in one Tamil newspapers having circulation in the locality. The said notice shall also be displayed in the offices of the,­

(i) Highways Authority of the division concerned;

(ii) Village Administrative Officer of the village concerned; and

(iii) Tahsildar of the taluk concerned.

(2) If any objection is received from a person interested in the land within the time prescribed in the public notice issued under sub­section 2 of section 15, the Government or the Collector or the Special Deputy Collector (Land Acquisition), Tamil Nadu Urban Development Project III, as the case may be, shall fix a date for hearing the objections and give notice thereof to the objector as well as to the Highways Department. Copies of the objection shall also be forwarded to the Highways Department. The Highways Department may file on or before the date fixed by the Government or the Collector as the case may be, a statement by way of answer to the objections and may also depute a representative to attend the enquiry;

12 (3) On the date fixed for enquiry or any other date to which the enquiry may be adjourned, the Government or the Collector or the Special Deputy Collector (Land Acquisition), Tamil Nadu Urban Development Project III, as the case may be, shall hear the objector or a person authorised by him in this behalf and the representatives, if any, of the Highways Department and record any evidence that may be produced in support of the objection and in support of the need for acquiring the land;

(4) Where the enquiry is conducted by the Collector, on completion of the enquiry, the Collector shall submit all the details of the enquiry to the Government to pass order under sub­section (3) of section 15;

(5) Where the enquiry is conducted by the Government, the Government will pass order under sub­section (3) of section 15;”

5.1 In the present case public notice under Section 15(2) of the

Act, 2001 was issued on 30.11.2010 and paper publication

under Section 15(2) notice was issued on 03.12.2010. That

the petitioner submitted his objections on 15.12.2010;

enquiry was conducted on 24.12.2010; objections were sent

to the Highways Department and the remarks were called

for on 20.12.2010. The Highways Department forwarded its

reply/statement may be after conduct of the enquiry on

24.12.2010 but before the notification under Section 15(1)

of the Act, 2001 was issued. It is the case on behalf of the

petitioner that at the time when the enquiry was conducted

response from the Highways Department was not before the

13 authority and no opportunity was given to the petitioner to

put forward his case on the answers to the objections

tendered by the Highways Department. However, it is to be

noted that Section 15 is a substantive provision which

confers powers upon the authority to acquire the land. Sub­

section (1) of Section 15 provides for issuance of the

notification to acquire land required for the purpose of any

highway or for construction of bridges, culverts, causeways,

or other structures thereon or for any purpose incidental or

ancillary thereto. Sub­section (2) of Section 15 provides that

before publishing a notice under sub­section (l), the

Government shall call upon the owner and any other person

having interest in such land to show cause within such time

as may be specified in the notice, why the land should not

be acquired. Sub­section (3) of Section 15 provides that the

Government may, after considering the cause [objections

raised pursuant to the notice under sub­section (2) of

Section 15], pass such order under sub­section (1). Rule 5

of the Rules, 2003 can be said to be a procedural provision

and it provides for the manner of publication of public

notice. Sub­rule (2) of Rule 5 provides that if any objection

14 is received from a person interested in the land within the

time prescribed in the public notice issued under sub­

section 2 of Section 15, the Government or the Collector or

the Special Deputy Collector (Land Acquisition), shall fix a

date for hearing the objections and give notice thereof to the

objector as well as to the Highways Department. It further

provides that copies of the objection shall also be forwarded

to the Highways Department and the Highways Department

MAY file on or before the date fixed by the Government or

the Collector, as the case may be, a statement by way of

answer or response to the objections and may also depute a

representative to attend the enquiry. The object and

purpose of sub­rule (2) of Rule 5 seems to be to give an

opportunity to the Highways Department also to meet with

the objections raised by the land owners and so as to give

an opportunity to the Highways Department to put forward

their case. It further provides that the Highways

Department may file a statement by way of answer to the

objections. It is not a mandatory requirement. Therefore, the

Highways Department may or may not file a statement by

way of answer to the objections. There is no further

15 provision to furnish a statement by way of answer to the

objections filed by the Highways Department to the original

land owners. The object and purpose of said sub­rule (2) of

Rule 5 as observed hereinabove is to hear the Highways

Department on the objections raised by the original land

owners. Therefore, non­filing of a statement by way of

answer to the objections by the Highways Department

and/or non­furnishing the copy of the same to the original

land owners shall not vitiate the entire process of

acquisition process and/or the notification issued under

sub­section (1) of Section 15 of the Act, 2001. It can be said

that the said provision is for the benefit of the Highways

Department so that no adverse decision is taken by the

State Government without giving an opportunity to the

Highways Department.

6. In the present case, before issuance of notification under

Section 15(1) of the Act, 2001, fullest opportunity has been

given to the original land owner to submit his objections.

Thereafter, the enquiry has been conducted as required

under sub­section (2) of Section 15 and after considering

the objections and having been satisfied that the land is

16 required for the purpose of Highways Department, the

notification under Section 15(1) of the Act, 2001 has been

issued. It is to be noted that before issuing the notification

under Section 15(1) of the Act, 2001, a statement by way of

answer to the objections by the Highways Department was

before the authority and thereafter the notification under

Section 15(1) of the Act, 2001 has been issued. Therefore,

the learned Single Judge and the Division Bench of the High

Court was right in observing that there is a substantial

compliance of Section 15 of the Act, 2001 read with Rule 5

of the Rules, 2003 and no interference of the Court is called

for.

7. However, at the same time Shri Ahmadi, learned Senior

Advocate, appearing on behalf of the petitioner, is right in

making submission that as the validity of Rule 5 was not

before the High Court therefore, the High Court ought not to

have held Rule 5 to be ultra vires. However, from the

impugned judgment and order of the Division Bench of the

High Court, it appears that the Division Bench of the High

Court was of the opinion that Rule 5 being a subordinate

legislation is inconsistent with the provision of Section 15(2) 17 of the Act, and therefore, the same is to be ignored. It is true

that the same was not warranted and we are of the opinion

that Rule 5 cannot be said to be inconsistent with Section

15(2) of the Act. However, on merits and for the reasons

stated above, we are in complete agreement with the

ultimate view taken by the learned Single Judge confirmed

by the Division Bench of the High Court upholding the

acquisition in question. Hence, we do not propose to further

enter into the observations made by the Division Bench that

the provision of Rule 5 of the Rules, 2003 is inconsistent

with Section 15(2) of the Act, 2001.

8. In view of the above and for the reasons stated above, there

is no substance in the present Special Leave Petitions and

therefore, the same deserve to be dismissed and are

accordingly dismissed.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J. SEPTEMBER 02, 2022 [B.V. NAGARATHNA]

18