M. MOHAN versus THE STATE GOVERNMENT OF TAMIL NADU & ORS. on 2 September 2022

1. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 22.03.2022 passed by the High Court ofJudicature at Madras in Writ Appeal Nos. 2169 and 2170 of 2021, bywhich, the Division Bench of the High Court has dismissed the saidappeals and has confirmed the judgment and order passed by the learnedSingle Judge in respective writ petitions, the original writ 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 onPeriyar EVR Salai near Aminjakari, Nelson Manickam Road Junctionand Anna Nagar 3[rd ]Avenue junction, for the purpose of constructing aFlyover and Subway in the said location. The said lands were acquiredunder the provisions of the Tamil Nadu Highways Act, 2001 (hereinafterreferred to as the Act, 2001). That a notice under Section 15(2) of theAct, 2001 was issued inviting objections of owners and any other personhaving interest in the lands to be acquired to show cause as to why thelands may not be acquired. The petitioner herein – original land ownersubmitted his detailed objections and the notices were also sent to thehighways authorities/department of the division concerned. Accordingto the State, after considering the objections raised by the original land A

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Aowner on the report submitted by the highways authorities, a notificationunder Section 15(1) of the Act, 2001 was issued. The original land ownersbeing aggrieved with the notification issued under Section 15(1) of theAct, 2001 filed writ petitions before the High Court contending, inter-alia, that the notification under Section 15(1) of the Act, 2001 is in violationof the procedure to be followed under Rule 5 of the Tamil NaduBHighways Rules, 2003 (hereinafter referred to as the Rules, 2003). Itwas the case on behalf of the original writ petitioner that Rule 5 laysdown the manner for publication of the public notice and the manner ofconducting the enquiry. According to the original writ petitioner, beforepublishing a notice under Section 15(1), the Government or Collector orCSpecial Deputy Collector shall call upon the owner and any other personhaving interest in the land to show cause as to why the land may not beacquired. If objections are received from a person interested in the land,the Government or Collector or Special Deputy Collector shall fix a datefor hearing the objections and give notice thereof to the objector as wellas to the Highways Department. According to the original land owner,Dthereafter the Highways Department shall file, on or before the datefixed by the Government or Collector or Special Deputy Collector astatement by way of an answer or response to the objections and mayalso depute a representative to attend the enquiry and thereafter theGovernment or Collector or Special Deputy Collector shall hear theEobjector and the Highways Department and record any evidence thatmay be produced by either party and on completion of the enquiry, theCollector shall submit all details of the enquiry to the Government topass an order under sub-section (3) of Section 15. According to theoriginal writ petitioner without waiting for the response from the HighwaysDepartment and without giving any opportunity of being heard to theFobjectors, the notification under Section 15(1) of the Act, 2001 has beenissued, 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 thatthe notifications under Section 15(1) of the Act, 2001 was issued afterconsidering the report of the Collector on the objections submitted byGthe original land owners and even the response from the HighwaysDepartment was received. That the learned Single Judge by a detailedjudgment and order dismissed the writ petitions by observing that thenotification under Section 15(1) of the Act, 2001 was followed by adetailed enquiry and after considering the objections raised by the originalHland owners. The learned Single Judge opined that there was substantial compliance and there is no illegality committed in issuing the notificationunder Section 15(1) of the Act, 2001.

2.2 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned Single Judge dismissing the writ petitions, theoriginal writ petitioner filed writ appeal(s) before the High Court. By thecommon impugned judgment and order, the Division Bench of the HighCourt has dismissed the said appeal(s) which has given rise to the presentSpecial Leave Petitions.

3. Shri Huzefa A. Ahmadi, learned Senior Advocate has appearedon behalf of the petitioner – original land owner. It is vehemently submittedby Shri Ahmadi that in the present case before issuing notification underSection 15(1) of the Act, 2001, the procedure required to be followedunder Rule 5 of the Rules, 2003, which was required to be strictlyfollowed, have not been followed.

3.1 Shri Ahmadi, learned Senior Advocate appearing on behalf ofthe petitioner has submitted that before issuing a notification under Section15(1), the following procedure as per Rules 5(2) and 5(3) shall have tobe strictly followed: -

(i) State’s delegated authority receives objections of the landowner - Rule 5(2);

(ii) State’s delegated authority fixes a date for hearing theobjections and gives notice thereof to the objector and therequisitioning authority - Rule 5(2);

(iii) Copy of the land owner’s objections shall be forwarded tothe requisitioning authority - Rule 5(2);

(iv) On the date fixed for enquiry, the State shall hear the objectorand the representative of the requisitioning authority, if anyand record evidence - Rule 5(3);

(v) On or before the date fixed for hearing, the requisitioningauthority may submit an answer statement to the objections- Rule 5(2)

It is submitted that in the present case, without waiting for anyresponse from the Highways Department/authorities to the objectionsraised by the original land owner, notification under Section 15(1) of theAct, 2001 has been issued.

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A3.2 It is further submitted that in the present case the acquisitionof the petitioner’s land was sought to be done in two parts. While in thefirst part, the petitioner’s objections were submitted on 15.12.2010.However, the requisitioning authority’s (Highways Department) responsethereto was sent only on 25.01.2011 – a month after the enquiry wassuperficially held on 24.12.2010. It is contended that the aforesaid is inBclear violation of the procedure envisaged under the Rules. It is submittedthat having forwarded the objections to the requisitioning authority seekingfor its comments, the enquiry ought not to have been held prior to receiptof the comments. That even after receiving of the comments of therequisitioning authority, post the superficial enquiry, the same were notCprovided to the petitioner and/or no fresh enquiry was conductedthereafter, prior to the issuance of notification under Section 15(1) of theAct, 2001. That if such comments were provided to the petitioner, hewould have been in a better position to place before the State, inter-alia,that his objections were not properly considered and/or that the responseof the requisitioning authority did not respond to his specific objections;Dthe response was faulty, incorrect, etc. It is submitted that therefore, thepetitioner 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 underthe second part, the petitioner submitted his objections on 15.12.2011,Eand the enquiry was superficially held on 15.12.2011 itself. It was anempty formality. Therefore, for the second part of the acquisition, thepetitioner’s objections were never forwarded to the requisitioningauthority, which is a mandatory requirement as per Rule 5(2). Further,there was no notice fixing a date for hearing of objections under Rule F5(2) and the hearing was held on the same day the objections wererequired to be submitted, which is also contrary to Rules.

3.4 It is submitted that even otherwise a perusal of the responsesgiven by the requisitioning authority shows identical and mechanicalresponses it gave in response to all objectors, thereby clearly showingGnon-application of mind.

3.5 It is further contended by Shri Ahmadi, learned Senior Advocateappearing on behalf of the petitioner that as such the Division Bench ofthe High Court has materially erred in not considering and/or in holdingthat Rules 5(2) and 5(3) are to be ignored as they are not in conformityHwith 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 tohold so, more particularly, when these Rules were duly framed and placedbefore the Legislative Assembly and issued, and have stood the test oftime. It is submitted that their vires have never been questioned and theState has been following the Rules without demur. That the High Courtought to have appreciated that the procedure set down by these Rulesare a safeguard against arbitrariness, and protect the expectation of fairadjudication. Reliance is placed on the decision of this Court in the caseof State of Mysore & Ors. Vs. V.K. Kangan & Ors.; (1976) 2SCC 895 wherein it is held by this Court that there is no conflict betweenRule 3(b) of the 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 theimpugned judgment(s) and order(s) passed by the High Court andconsequently 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 theHigh Court challenged the acquisition of lands in question which wereacquired under the provisions of the Tamil Nadu Highways Act, 2001.The acquisition was challenged, inter-alia, on the ground that theprocedure required under Rule 5 of Rules, 2003 has not been followedand while considering the objections raised by the petitioner – land ownerthe opinion of the highways authorities of the division concerned wasnot considered and also on the ground that before issuing notificationunder Section 15(1) of the Act, 2001, the objections of the land ownerwere not properly considered. That the learned Single Judge dismissedthe writ petitions observing that there was a substantial compliance ofthe procedure as required to be followed under Rule 5 of Rules, 2003inasmuch as the objections raised by the petitioner – original land owner,were specifically dealt with and considered before issuing the notificationunder Section 15(1) of the Act, 2001. However, while affirming thejudgment and order passed by the learned Single Judge, the DivisionBench of the High Court has further observed that Rule 5(2) to Rule5(3) is not in consonance with Section 15(2) and therefore, it is to beignored.

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5. While appreciating the submissions made by Shri Ahmadi,learned Senior Advocate, appearing on behalf of the petitioner, Section15 of the Act, 2001 and Rule 5 of Rules, 2003 are required to be referredto and considered, which are as under: - A

“TAMILNADU HIGHWAYS ACT, 2001BSection 15. Power to acquire land:

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

(2) Before publishing a notice under Sub-section (l), the Governmentshall call upon the owner and any other person having interest inDsuch land to show cause within such time as may be specified inthe notice, why the land should not be acquired. The Governmentshall also cause a public notice to be given in such manner as maybe prescribed.

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

“TAMIL NADU HIGHWAYS RULES, 2003

5. Manner of publication of the public notice. - Beforepublishing a notice under sub-section (1) of section 15, theFGovernment or the Collector or the Special Deputy Collector (LandAcquisition), Tamil Nadu Urban Development Project III, as thecase may be shall in addition to calling upon the owner and anyother person having interest in the land to show cause as to whythe land should not be acquired, shall also cause a public notice toGthat effect to be published in one English and in one Tamilnewspapers having circulation in the locality. The said notice shallalso be displayed in the offices of the,-

(i) Highways Authority of the division concerned;

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

(iii) Tahsildar of the taluk concerned.

(2) If any objection is received from a person interested in theland within the time prescribed in the public notice issued undersub-section 2 of section 15, the Government or the Collector orthe Special Deputy Collector (Land Acquisition), Tamil Nadu UrbanDevelopment Project III, as the case may be, shall fix a date forhearing the objections and give notice thereof to the objector aswell as to the Highways Department. Copies of the objectionshall also be forwarded to the Highways Department. TheHighways Department may file on or before the date fixed by theGovernment or the Collector as the case may be, a statement byway of answer to the objections and may also depute arepresentative to attend the enquiry;

(3) On the date fixed for enquiry or any other date to which theenquiry may be adjourned, the Government or the Collector orthe Special Deputy Collector (Land Acquisition), Tamil Nadu UrbanDevelopment Project III, as the case may be, shall hear theobjector or a person authorised by him in this behalf and therepresentatives, if any, of the Highways Department and recordany evidence that may be produced in support of the objectionand in support of the need for acquiring the land;

(4) Where the enquiry is conducted by the Collector, on completionof the enquiry, the Collector shall submit all the details of the enquiryto the Government to pass order under sub-section (3) of section15;

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

5.1 In the present case public notice under Section 15(2) of theAct, 2001 was issued on 30.11.2010 and paper publication under Section15(2) notice was issued on 03.12.2010. That the petitioner submitted hisobjections on 15.12.2010; enquiry was conducted on 24.12.2010;objections were sent to the Highways Department and the remarks werecalled for on 20.12.2010. The Highways Department forwarded its reply/statement may be after conduct of the enquiry on 24.12.2010 but beforethe notification under Section 15(1) of the Act, 2001 was issued. It is thecase on behalf of the petitioner that at the time when the enquiry wasconducted response from the Highways Department was not before the A

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Aauthority and no opportunity was given to the petitioner to put forwardhis case on the answers to the objections tendered by the HighwaysDepartment. However, it is to be noted that Section 15 is a substantiveprovision which confers powers upon the authority to acquire the land.Sub-section (1) of Section 15 provides for issuance of the notification toacquire land required for the purpose of any highway or for constructionBof bridges, culverts, causeways, or other structures thereon or for anypurpose incidental or ancillary thereto. Sub-section (2) of Section 15provides that before publishing a notice under sub-section (l), theGovernment shall call upon the owner and any other person having interestin such land to show cause within such time as may be specified in theCnotice, why the land should not be acquired. Sub-section (3) of Section15 provides that the Government may, after considering the cause[objections raised pursuant to the notice under sub-section (2) of Section15], pass such order under sub-section (1). Rule 5 of the Rules, 2003can be said to be a procedural provision and it provides for the mannerof publication of public notice. Sub-rule (2) of Rule 5 provides that if anyDobjection is received from a person interested in the land within the timeprescribed in the public notice issued under sub-section 2 of Section 15,the Government or the Collector or the Special Deputy Collector (LandAcquisition), shall fix a date for hearing the objections and give noticethereof to the objector as well as to the Highways Department. It furtherEprovides that copies of the objection shall also be forwarded to theHighways Department and the Highways Department MAYfile on orbefore the date fixed by the Government or the Collector, as the casemay be, a statement by way of answer or response to the objections andmay also depute a representative to attend the enquiry. The object andpurpose of sub-rule (2) of Rule 5 seems to be to give an opportunity toFthe Highways Department also to meet with the objections raised by theland owners and so as to give an opportunity to the Highways Departmentto put forward their case. It further provides that the HighwaysDepartment may file a statement by way of answer to the objections. Itis not a mandatory requirement. Therefore, the Highways DepartmentGmay or may not file a statement by way of answer to the objections.There is no further provision to furnish a statement by way of answer tothe objections filed by the Highways Department to the original landowners. The object and purpose of said sub-rule (2) of Rule 5 as observedhereinabove is to hear the Highways Department on the objections raisedby the original land owners. Therefore, non-filing of a statement by wayH

M. MOHAN v. THE STATE GOVERNMENT OF TAMIL NADU& ORS. [M. R. SHAH, J.]

M. MOHAN v. THE STATE GOVERNMENT OF TAMIL NADU& ORS. [M. R. SHAH, J.]

of answer to the objections by the Highways Department and/or non-furnishing the copy of the same to the original land owners shall notvitiate the entire process of acquisition process and/or the notificationissued under sub-section (1) of Section 15 of the Act, 2001. It can besaid that the said provision is for the benefit of the Highways Departmentso that no adverse decision is taken by the State Government withoutgiving an opportunity to the Highways Department.

6. In the present case, before issuance of notification under Section15(1) of the Act, 2001, fullest opportunity has been given to the originalland owner to submit his objections. Thereafter, the enquiry has beenconducted as required under sub-section (2) of Section 15 and afterconsidering the objections and having been satisfied that the land isrequired for the purpose of Highways Department, the notification underSection 15(1) of the Act, 2001 has been issued. It is to be noted thatbefore issuing the notification under Section 15(1) of the Act, 2001, astatement by way of answer to the objections by the HighwaysDepartment was before the authority and thereafter the notification underSection 15(1) of the Act, 2001 has been issued. Therefore, the learnedSingle Judge and the Division Bench of the High Court was right inobserving 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 theCourt is called for.

7. However, at the same time Shri Ahmadi, learned SeniorAdvocate, appearing on behalf of the petitioner, is right in makingsubmission that as the validity of Rule 5 was not before the High Courttherefore, the High Court ought not to have held Rule 5 to be ultravires. However, from the impugned judgment and order of the DivisionBench of the High Court, it appears that the Division Bench of the HighCourt was of the opinion that Rule 5 being a subordinate legislation isinconsistent with the provision of Section 15(2) of the Act, and therefore,the same is to be ignored. It is true that the same was not warranted andwe are of the opinion that Rule 5 cannot be said to be inconsistent withSection 15(2) of the Act. However, on merits and for the reasons statedabove, we are in complete agreement with the ultimate view taken bythe learned Single Judge confirmed by the Division Bench of the HighCourt upholding the acquisition in question. Hence, we do not propose tofurther enter into the observations made by the Division Bench that theprovision of Rule 5 of the Rules, 2003 is inconsistent with Section 15(2)of the Act, 2001.

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[2022] 16 S.C.R.

A8. In view of the above and for the reasons stated above, there isno substance in the present Special Leave Petitions and therefore, thesame deserve to be dismissed and are accordingly dismissed.

Bibhuti Bhushan Bose

B(Assisted by : Preetam Bharti, LCRA)

SLPs dismissed.

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