Madras High Court
The American College vs The State Of Tamil Nadu on 21 December, 2021
W.P.(MD) No.22409 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
W.P.(MD) No.22409 of 2021
and
W.M.P.(MD)Nos.18955 an 18957 of 2021
The American College,
Rep. by its Principal and Secretary,
Dhavamani Christopher,
Tallakulam, Madurai. ... Petitioner
vs.
1.The State of Tamil Nadu,
Rep. by its Secretary,
Highways Department,
Fort St. George,
Chennai.
2.The District Collector,
Madurai District, Madurai.
3.The Revenue Divisional Officer,
Competent Authority,
Highways Acquisition,
Madurai.
4.The District Revenue Officer,
Competent Authority Highways Acquisition,
District Collectorate Office,
Madurai. ... Respondents
1/18
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W.P.(MD) No.22409 of 2021
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorari, to call for the records relating to the impugned
acquisition notification issued by the fourth respondent in Na.Ka.No.
35616/2014/P7, dated 13.11.2021 and the consequential private notices issued in
Na.Ka.No.35616/2014/P7, dated 18.11.2021 of the fourth respondent and quash
the same as illegal.
For Petitioner : Mr.M.Ajmalkhan
Senior Counsel
M/s.Ajmal Associates
For Respondents : Mr.Veerakathiravan
Additional Advocate General
Assisted by Mr.D.Ghandiraj
Special Government Pleader
ORDER
Heard Mr.M.Ajmalkhan, learned Senior Counsel and Mr.Veerakathiravan,
learned Additional Advocate General assisted by Mr.D.Ghandiraj, learned Special
Government Pleader, who had taken notice on behalf of the respondents.
2. The writ petition has been filed in the nature of Writ of Certiorari,
calling into question a notification issued by the fourth respondent/The District
Revenue Officer, Competent Authority Highways Acquisition, District
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W.P.(MD) No.22409 of 2021
Collectorate Office, Madurai in Na.Ka.No.35616/2014/P7, dated 13.11.2021 and
also calling into question the further and consequential notice issued in
Na.Ka.No.35616/2014/P7, dated 18.11.2021 passed by the fourth respondent and
to interfere with both the aforesaid notifications.
3. The petitioner herein, is the American College and is represented in this
writ petition by the Principal and Secretary. As an introduction, the American
College had been established in the year 1881 by the Christian Minority
Missionaries called “The American Mission”. They had also established
St.Stephen College, New Delhi in the same year. The petitioner College has
acquired reputation imparting education to students of southern Districts of Tamil
Nadu. It is the first college to take on roll, lady students, as early as in the year
1921. Naturally, the construction and the building is also an old/heritage
construction. It is stated that as on date, there are about 18 under graduate courses
and 15 post graduate courses offered by the College and, there are about 5000
students pursuing education.
4. The aforesaid preliminary introduction has been given, since the College
claims that it has been very seriously prejudiced by the notification issued by the
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W.P.(MD) No.22409 of 2021
fourth respondent and the consequential notification issued by the third
respondent. The notification had been issued under Section 15(2) of the Tamil
Nadu Highways Act, 2001, and is dated 15.02.2018. It had been issued by the
third respondent. In the notice, it had been stated that the respondents intend to
construct a fly overbridge over and on the land, which is admittedly under the
possession of the petitioner College. To construct the overbridge, lands measuring
an extent of 9211 sq.mtrs in S.No.4771, Ward X, Madurai North Taluk, Madurai
is required. This is the entire extent of the land. The lands of the petitioner
college in Town S.Nos.10, 14, 15, 16 and 1, Madurai North Taluk, Madurai would
be affected, if such acquisition is proceeded with by the respondents.
5. Mr.M.Ajmalkhan, learned Senior Counsel for the petitioner assailed the
notification issued under Section 15(2) of the said Act on the ground that a
preliminary notification, primarily, under Section 8 of the very same Act, had not
been issued and unless the road, which is sought to be acquired is declared as a
highway, further notification under Section 15(2) would not lie and necessarily,
will have to be struck down by the Court. The learned Senior Counsel pointed
out the provisions of Section 8 of the Act.
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W.P.(MD) No.22409 of 2021
6. Section 8 stipulates the authority who gives power to the competent
authority to fix the highway boundary, building line, control line etc. This is
done, where construction or development of a highway is undertaken or proposed
to be undertaken. Naturally, it can be undertaken only in an existing road, which
has been declared as a highway.
7. There might be an another instance, where a particular road would be,
for the first time constructed as a highway. In that case, the existing road which is
acquired should be declared to be a highway. For that, the highway boundary, the
building line, the control line will necessarily have to be fixed.
8. This has to be done prior to the issuance of a notice under Section 15 of
the very same Act. Section 15 of the said Act, gives the authority the power to
acquire the land. Section 15 (2) can be considered to be an inbuilt safeguard in
the Act. This provision has to be read in conjunction with the Rules which have
been appended to the said Act. Rule 5 gives the manner of publication of the
public notice. Let me first extract Section 15 of the Tamil Nadu Highways Act,
2001, for better appreciation:
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W.P.(MD) No.22409 of 2021
“Section 15: Acquisition of Property:-
(1) If the Government are satisfied that any land is required for
the purpose of acquire land. 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.
(2) Before publishing a notice under sub-section (1), the
Government 1[…], 2 […], 3[ ] 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 1[…], 2 […], 3[ ] 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.”
9. Section 15(1) provides, the power to acquire 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. Prior to the issuance
of notice or the acquisition proceedings in the Tamil Nadu Government Gazette,
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W.P.(MD) No.22409 of 2021
Section 15(2) has to be resorted to, which stipulates that the Government should
call upon the owner or any other person having interest on such land and in this
case, the petitioner, to show cause, within a specified period, the reasons why the
land should not be acquired.
10. A reading of Section 15(2) contemplates that the Government had
taken a decision to acquire the lands and the onus shifts to the owner of the lands
to give reasons why the lands should not be acquired. It is not a question of the
Government justifying acquisition of the lands, but rather the owner, coming
forward and giving reasons why the lands should not form part of the acquisition
proceedings. Therefore, it necessitates that the owners should be put on notice.
There should be a publication or a public notice. Public notice is normally given
in newspapers and it is also given in both vernacular and in English newspapers.
11. In this case, the choice of the newspaper has also been assailed by the
learned Senior Counsel. He says that the notice had been published in Makkal
Kural in Tamil and in Trinity Mirror and the publishing date was 14.11.2021.
Learned Senior Counsel stated that he had never heard of a newspaper called
Trinity Mirror and questions whether such a newspaper has wide publication and
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W.P.(MD) No.22409 of 2021
publication in such newspaper can be considered on compliance of the conditions
as required.
12. A reading of Rule 5 of the Tamil Nadu Highways Rules, 2003, shows
that the Rule provides the method in which, the publication should be given. It
indicates that the public notice stating that the lands are to be acquired must be
published in one English and in one Tamil newspaper, having circulation in the
locality. Circulation in the locality is an issue of fact. This Court can never
examine whether a particular newspaper has wide circulation or less circulation.
It is an information known exclusively to the people of the local area.
13. At any rate, the petitioner has been made aware of the notification and
the notification as such, has been published as required, in one English and in one
Tamil newspaper. The word 'substantial' circulation or 'wide' circulation has not
been used in the Rule and what has been stipulated is that the newspaper should
have circulation in the locality. The local people should be in a position to
purchase the newspaper and should be in a position to understand that a notice
had been issued in that local area that the lands mentioned in the notice are
proposed to be acquired.
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W.P.(MD) No.22409 of 2021
14. Thereafter, Rule 5 (2) of the Tamil Nadu Highways Rules, 2003, also
gives the manner in which, the objections of the owners have to be dealt with by
the authorities. Rule 5(2) of the Tamil Nadu Highways Rules, 2003, it is
extracted below:-
“5(1)..................
5(2) If any objection 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, 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 2 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; ..”
15. The above Rule contemplates adherence to the principles of natural
justice, which is inbuilt in the Rules. There has to be a date for hearing. There has
to be notice issued to the objector. There has to be a notice issued to the
Highways Department Authority. There has to be forwarding of copies of
objection to the Highways Department. There has to be an opportunity to the
Highways Department to file their statement and answer the objections and
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W.P.(MD) No.22409 of 2021
thereafter, they must also attend the enquiry. Naturally the onus is on the person
interested in attending the enquiry. There must be a hearing of the objector or a
person authorized by him. This naturally indicates there must be an opportunity of
personal hearing being given. Thereafter, after following due procedure during
the course of enquiry, an order can be finally passed under Section 15(3) of the
Act.
16. These are all protections, which are inbuilt in the Statute, and I am
confident that the petitioner does not imply they would be denied such protection.
The petitioner would be given necessary protection under the Statute as envisaged
under Section 15(2) r/w Rule 5 of the Rules. Naturally, only after going through
all these processes would an order under Section 15(3) of the Act be passed.
17. The learned Senior Counsel placed reliance on a Judgement of a
learned Single Judge of this Court in a batch of matters in the case of R.Moorthy
and 28 others Vs. State of Tamil Nadu and anothers reported in 2014 (2) CWC
763 in W.P.(MD)Nos.39261 of 2003 etc batch, dated 25.09.2014. The learned
Single Judge had taken a view, that if the Statute prescribed a particular act is to
be done in a particular manner, then, no leverage can be granted to the authority
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W.P.(MD) No.22409 of 2021
to do that particular act in any other manner but a direct burden is caused on the
said authority to do that act in the manner prescribed. No excuses can be given or
can be sought or can be granted for any deviation in the procedures.
18. The deviation in the procedures which has been pointed in the instant
case is, non-issuance of notification or declaration that the road which is sought
to be acquired under Section 8 of the Act.
19. The learned Single Judge was actually presented with two differing
rulings of two learned Single Judges of this Court and he had followed the dictum
laid down in one and stated that the other one was distinguishable on facts.
20. The learned Senior Counsel also relied on the decision of a Division
Bench of this Court in the case of R.Kumar and Others Vs. State of Tamil Nadu
reported in 2006 (4) CTC 640. The Division Bench of this Court had
distinguished the judgment in Jayaraman Vs. State of Tamil Nadu reported in
2014 (1) CWC 635.
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W.P.(MD) No.22409 of 2021
21. In R.Moorthy and 28 others Vs. State of Tamil Nadu and another, the
learned Single Judge of this Court, had stated that with respect to delegation of
power by the District Collector to the District Revenue Officer, the District
Revenue Officer was not competent to issue such notification under Section 15(2)
of the State Act. He had been stated that the officer or the authority who issued
the notice in those cases did not have any such authority to issue the notices.
Thereafter in para.147 of the said decision, the learned Single Judge had also
observed that the impugned Notification under Section 15(2) of the State Act, had
been issued without complying with the pre-requisite of issuing a Notification
under Section 8(1) of the Act, fixing the highway boundary, building line or
control line and without even issuing notice as per Section 8(2)(b) of the Act to
the persons likely to be affected by such Notification. It had been stated in the
judgment that the alignment and other technical issues are to be decided by the
Highways Authority and therefore, there must be an identification of the lands
before a decision is taken. Further in Para.151, the learned Single Judge has
stated that since there was no such Notification declaring the road as Highways
and since no marking was also done, enquiry as contemplated under Section 15(3)
would be meaningless.
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W.P.(MD) No.22409 of 2021
22. The learned Additional Advocate General appearing for the
respondents pointed out that the above are issues which can be examined during
the course of enquiry, as contemplated under Section 15(2) and also as laid down
under Rule.
23. Whether the Notification issued under Section 8 is required or not is an
issue of fact. The nature of the lands which are now sought to be acquired are
again issues of facts. In R.Moorthy and 28 others Vs. State of Tamil Nadu and
another, it was clearly held that the road which was sought to be acquired, was to
be developed as a highway. The learned Senior Counsel stated that even in that
case, it was for the construction of a overbridge.
24. But there is a distinction between an overbridge being constructed in
the course of development of a highway and an overbridge being constructed in
the heart of a city. The petitioner's objections, particularly, with respect to
alignment and whether the lands of the petitioner are actually required, will have
to be examined only by the authorities, who had taken a decision to acquire the
said lands. This Court cannot substitute itself for those authorities.
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25. It would only be appropriate that the petitioner is relegated back to the
authorities and granted liberty to raise necessary objections to the Notification
itself and an obligation is placed on the respondents to enquire whether this
particular notification requires pre-issuance of a notification under Section 8 or
not. These are issues on facts. Eventhough the learned Single Judge has stated in
R.Moorthy's case (referred supra), that a Notification not preceded by a prior
Notification under Section 8 of the Act can be interfered with, in the present case,
I would confine myself to the provisions of law as given in the Act and in the
Rules and hold that the petitioner has been given necessary safeguards and can
raise all these objections before the authorities. I would also give liberty to the
petitioner that if the objections are over ruled or not considered, then, he may also
invite a ruling whether for the particular land which is acquired, the Notification
should be preceded by a Notification issued under Section 8 of the Act.
26. Let the facts be first decided. The petitioner has come to the Court
immediately when a notice under Section 15(2) had been issued. Let the
petitioner first approach the authorities. Let the petitioner give the reasons why
the lands should not be acquired. Among reasons, the petitioner can also state that
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Notification under Section 8 was not issued. That is also an issue to be advanced
by the petitioner before the competent authority and thereafter, the competent
authority should examine the objections in manner known to law and in manner
prescribed by law.
27. The provisions had been extracted aforesaid and I am confident that the
respondents would examine the objections in the light of the provisions of the
Act.
28. Granting that liberty to the petitioner herein and directing the
respondents to proceed in manner known to law and consider the objections
which are raised by the petitioner, I hold that the writ petition at this stage is
premature.
29. The learned Senior Counsel for the petitioner had also relied on the
Judgment of the Hon'ble Supreme Court of India in the case of Laljibhai
Kadavabhai Vs. State of Gujarat reported in 2016 (9) SCC 791. The learned
Senior Counsel stated that the provisions under which, the lands in that particular
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W.P.(MD) No.22409 of 2021
case had been acquired is para-materia to the provisions of the Tamil Nadu
Highways Act and therefore, reference can also be made to that judgment.
30. I would, with respects, confine myself to the provisions of the Act
under which the present notification has been issued. It does not contemplate that
the authority should either be a Sub-Judge or a Judicial Officer. The facts are also
distinguishable.
31. I would still maintain the order of dismissal of the writ petition,
however, giving liberty as aforesaid, to the petitioner to approach the competent
authority in manner known to law. Let the petitioner approach the authority
concerned with their objections and thereafter, let an order be passed in
accordance with the Statute and the Rules appended therein.
32. In the result, the Writ Petition is dismissed. No costs. Consequently,
connected miscellaneous petitions are closed.
21.12.2021
Index : Yes / No
Internet : Yes / No
sji
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W.P.(MD) No.22409 of 2021
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1.The Secretary,
State of Tamil Nadu,
Highways Department,
Fort St. George, Chennai.
2.The District Collector,
Madurai District, Madurai.
3.The Revenue Divisional Officer,
Competent Authority,
Highways Acquisition,
Madurai.
4.The District Revenue Officer,
Competent Authority Highways Acquisition,
District Collectorate Office,
Madurai.
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W.P.(MD) No.22409 of 2021
C.V.KARTHIKEYAN,J.
sji
W.P.(MD) No.22409 of 2021
and
W.M.P.(MD)Nos.18955 an 18957 of 2021
21.12.2021
https://www.mhc.tn.gov.in/judis
