Full Judgment Text
REPORTABLE
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)
J U D G M E N T
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:
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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
rd
Manickam Road Junction and Anna Nagar 3 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
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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(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;
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(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
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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
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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
file on or before the date fixed by the Government or
MAY
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
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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)
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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]
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