Madras High Court
A.Sankar vs The District Collector on 14 June, 2022
W.A.Nos.1410, 1363, 1364, 1412 and 1414 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.06.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE N.MALA
W.A.Nos.1410, 1363, 1364, 1412 and 1414 of 2022
A.Sankar .. Appellant in
W.A.No.1410/2022
S.Balaraman .. Appellant in
W.A.No.1363/2022
A.David .. Appellant in
W.A.No.1364/2022
H.D.Bose @ Danisukumar .. Appellant in
W.A.No.1412/2022
V.Selvakani .. Appellant in
W.A.No.1414/2022
Vs
1.The District Collector,
Chengalpattu District,
Chengalpattu-603 001.
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2.The Special District Revenue Office,
Land Acquisition,
Highways, Metropolitan Wing,
Alandur, Chennai-600 016.
3.The Assistant Divisional Engineer (Highways),
Construction and Maintenance,
Tambaram, Chennai - 600 042. .. Respondents
Prayer: Appeals under Clause 15 of the Letters Patent against the
common order dated 05.01.2022 in W.P.Nos.28361, 28331, 28364,
28354 and 28374 of 2021.
For the Appellants : Mr.V.Raghavachari
For the Respondents : Mr.P.Muthukumar
State Government Pleader
assisted by
Mr.K.M.D.Mugilan
Government Advocate
COMMON JUDGMENT
(Delivered by the Hon'ble Chief Justice)
These writ appeals have been filed to challenge the judgment
and order dated 05.01.2022 passed by the learned Single Judge
dismissing the writ petitions to challenge the notice issued under
Section 19(5) and 19(7) of the Tamil Nadu Highways Act, 2001 [for
brevity, "the Act of 2001"].
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2. Learned counsel for the appellants submitted that without
acquisition of the land, notices under Section 19(5) and 19(7) of the
Act of 2001 were given. It is in ignorance of the fact that earlier also a
notice was issued under Section 4(1) of the Land Acquisition Act, 1894
in the year 1976 and published in the official Gazette on 11.02.1976,
followed by a declaration under Section 6 on 07.02.1979. A challenge
to it was made by a batch of writ petitions led by W.P.No.8131 of
1986. Those writ petitions were allowed, thereby the acquisition
proceedings initiated by the respondents was set aside.
3. It is further submitted that the respondents caused a notice
on 26.2.2016 for eviction under the caption of encroachment and
illegal occupation of the land. A challenge to the said notice was made
before this Court and the writ petition was disposed of with a direction
to treat it to be notice to show cause, thus, the appellants to submit
their objections within a period of two weeks. The appellants
submitted the objections and thereupon the respondents caused a
public notice on 23.11.2016 invoking Section 15(2) of the Act of 2001
calling for objections to the acquisition of the land. The appellants
submitted their objections. However, a notification under Section 15(1)
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of the Act of 2001 was published, followed by a notice under Sections
19(5) and 19(7) of the Act of 2001.
4. Learned counsel yet submitted that notice under Sections
19(5) and 19(7) of the Act of 2001 for determination of compensation
was issued without acquisition proceedings and, therefore, the same is
illegal. Objection to the said notice was given by the appellants, but
the respondents have failed to consider the same and during pendency
of the writ petitions, an award was passed on 31.03.2021.
5. The argument of learned counsel for the appellants is even in
reference to Section 8 of the Act of 2021 which is to be complied
before acquisition by invoking Sections 15(1) and 15(2) of the Act of
2001. In the instant case, notice under Section 15(2), followed by a
notification under Section 15(1) was issued without undertaking the
exercise as given under Section 8 of the Act of 2001. Section 8 of the
Act of 2001 gives power to the respondents to fix boundary, building
line or control line etc. of the highway. In the instant case, without
fixing the boundary of the highway, notification under Section 15(2)
was issued inviting objection against acquisition and, in fact, it was
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submitted. But ignoring the aforesaid, notification under Section
15(1), followed by notice under Sections 19(5) and 19(7) of the Act of
2001 was given. To support the argument, a reference of the
judgment of the Apex Court in the case of Sannarangappa v. State
of Karnataka and others, (2017) 12 SCC 797 has been given. A
specific reference of paragraphs (5) and (8) of the said judgment was
given to show that before initiation of the acquisition proceedings, the
exercise given under Section 8 of the Act of 2001 is mandatory. It is
also held that even if the issue aforesaid was not taken before the High
Court, that can be taken before the Apex Court. Thus, even if the
appellants have not taken the issue aforesaid before the learned Single
Judge, they are at liberty to take the issue in the appeals. Since the
issue aforesaid goes to the root of the case and the boundary of the
highway was not fixed as per Section 8 of the Act of 2001, the
subsequent proceedings under Sections 15(2) and 15(1) of the Act of
2001 is vitiated.
6. Learned counsel for the appellants has given further reference
of the judgment of the Apex Court in the case of Project Director,
Project Implementation Unit v. P.V.Krishnamoorthy and others,
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(2021) 3 SCC 572. Paragraphs (56) to (62) of the said judgment,
apart from other paragraphs are referred to strengthen the arguments
raised for challenge to the notice issued under Sections 19(5) and
19(7) of the Act of 2001. The prayer is to set aside the notice under
Sections 19(5) and 19(7) of the Act of 2001 and also the judgment
and order of the learned Single Judge.
7. Learned Government Pleader opposed the appeals and
submitted that an award, after notice under Sections 19(5) and 19(7)
of the Act of 2001, has already been passed determining the
compensation. The said award has not been challenged and he has
also produced photographs of the existing highway to show
obstructions on it on account of the land occupied by the appellants.
The photograph of the existing road would be enclosed along with this
judgment to have a clear picture of the area under acquisition.
8. Learned Government Pleader further submitted that
notification under Section 15(1) of the Act of 2001 was issued after
issuance of notification under Section 15(2) to invite objections
against the acquisition. The appellants have submitted their objections
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to the notification issued under Section 15(2) of the Act of 2001 and
finding no substance in the objections, notification under Section 15(1)
of the Act of 2001 was issued. No challenge to the notification under
Section 15(1) of the Act of 2001 was made and in view of the above,
to determine the compensation notice under Sections 19(5) and 19(7)
of the Act of 2001 was issued. Objection to the aforesaid notice was
given and after considering the objection, an award was passed on
31.03.2021, which is not under challenge.
9. Learned Government Pleader further submitted that the
exercise given under Section 8 of the Act of 2001 is required as and
when a new highway is to be carved out. The case on hand is not
carving of any new highway, but to bring the existing highway in
proper shape, as in a very small part, the appellants are occupying the
land. He further submits that the appellants have not challenged the
notification issued under Section 15(2) or notification Section 15(1) of
the Act of 2001 even on the ground that the acquisition of the land is
vitiated in the absence of the exercise given under Section 8 of the Act
of 2001. The argument aforesaid is otherwise factual in nature,
because as and when a new highway is carved, Section 8 of the Act of
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2001 is to be applied. It is not that a new highway has been carved
out in this case, but the highway exist for last many years. Thus, the
judgment of the Apex Court in the case of Sannarangappa (supra) is
not applicable and otherwise the appeal therein was dismissed by the
Apex Court without causing interference in the acquisition of land.
Thus, a prayer is made to dismiss the appeals.
10. We have considered the rival submissions and also scanned
the matter carefully.
11. The writ petitions were filed by the appellants to challenge
the notice issued under Sections 19(5) and 19(7) of the Act of 2001.
For ready reference, Section 19 of the Act of 2001 is quoted
hereunder:
"19. Determination of amount.- (1) Where any land
is acquired by the Government under this Act, the
Government shall pay an amount for such acquisition,
which shall be determined in accordance with the
provisions of this section.
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(2) Where the amount has been determined by
agreement between the Government and the person to
whom the amount has to be paid, it shall be paid in
accordance with such agreement.
(3) Where no such agreement can be reached, the
Government shall refer the case to the Collector for
determination of the amount to be paid for such
acquisition as also the person or persons to whom such
amount shall be paid:
Provided that no amount exceeding such
amount as the Government may, by general or
special order, specify, to be paid for such
acquisition shall be determined by the
Collector without the previous approval of the
Government or such officer as the Government
may appoint in this behalf.
(4) Notwithstanding anything contained in sub-section
(3), after the case is referred to the Collector under
that sub-section, but before he has finally determined
the amount, if the amount is determined by agreement
between the Government and the person to whom the
amount has to be paid, such amount shall be paid by
the Collector in accordance with such agreement.
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(5) Before finally determining the amount, the
Collector shall give an opportunity to every
person to whom the amount has to be paid to
state his case as to the amount.
(6) In determining the amount, the collector shall be
guided by the provisions contained in Sections 23 and
24 and other relevant provisions of the Land
Acquisition Act, 1894 (Central Act I of 1894), subject
to modification that in the said Sections 23 and 24, the
references to the date of publication of the notification
under sub-section (1) of Section 4 and the date of
publication of the declaration under Section 6 of the
said Act shall be construed as references to the date of
publication of notice under sub-sections (2) and (1),
respectively of Section 15 of this Act.
(7) For the purpose of determining the amount-
(a) the Collector shall have power to
require any person to deliver to him such
returns and assessments as be considers
necessary;
(b) the Collector shall also have power to
require any person known or believed to
be interested in the land to deliver to him
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a statement containing as far as may be
practicable, the name of every other
person interested in the land as co-owner,
mortgagee, tenant or otherwise, and the
nature of such interest, and of the rents
and profits, If any, received or receivable
on account thereof for three years next
preceding the date of the statement.
(8) Every person required to deliver a return,
assessment or statement under sub-section (7) shall
be deemed to be legally bound to do so within the
meaning of section 175 and section 176 of the Indian
Penal Code.
(9) The Collector may hear expert witnesses if it be
necessary to do so in any particular case.
(10) The Collector or any officer authorised by him in
this behalf shall be entitled to enter in and inspect any
land which is subject to proceedings ·before him.
(11)The Collector shall dispose of every case referred
to him under sub-section (3) for determination of
amount as expeditiously as possible and in any case
within six months from the date of such reference.
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(12) Where any case is referred to any Collector under
sub-section (3), the Government may, at any stage by
order, in writing and for reasons to be recorded
therein, transfer it to any other officer, and upon such
transfer, unless some special directions are given in
the order, the officer to whom the case is transferred,
may hear and dispose of the case from the stage at
which it was transferred or the case may be heard and
disposed of by him denovo."
12. Section 19 of the Act of 2001 pertains to determination of
compensation on acquisition of the land. A detailed process has been
given for that purpose and the exercise for it is to be taken only after
completion of the process for acquisition of land given under Section
15 of the Act of 2001. Section 15 of the Act of 2001 is also quoted
hereunder for ready reference:
"15. Power to acquire land.- (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
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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 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."
13. The documents on record show that before publication of the
notification under Section 15(1) of the Act of 2001, a notification under
Section 15(2) of the Act of 2001 was issued by the respondents and
pursuant to which, even the appellants have responded and submitted
their objections. After considering the objections, notification under
Section 15(1) of the Act of 2001 was published by the respondents
finding that the land is required for the purpose of maintaining
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highways. Section 15(1) of the Act can be invoked not only for the
highways, but even for the acquisition of land for construction of
bridges, culverts, causeways or other structures thereon or for any
purpose incidental or ancillary thereto, in furtherance of the objects of
the Act.
14. After issuance of the notification under Section 15(1) of the
Act of 2001, no challenge to it was made by the appellants and it was
so published in the year 2018. In view of the above, the process
required for acquisition of the land was undertaken by the
respondents. Accordingly, notice under Sections 19(5) and 19(7) of
the Act of 2001 was issued and no objection in that regard determining
the compensation was raised other than to raise objection on
acquisition of land and reference of previous litigation. The challenge
to the notice was not even on the ground that prior to it, the exercise
given under Section 8 of the Act of 2001 was not undertaken. In any
case, the learned Single Judge did not find any illegality in the notice
issued under Sections 19(5) and 19(7) of the Act of 2001 and,
accordingly, dismissed the writ petitions. We do not find any error in
the judgment and order of the learned Single Judge, because notice
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under challenge was for determination of compensation after a
notification under Section 15 of the Act of 2001.
15. The issue raised before this Court for the first time is in
reference to Section 8 of the Act of 2001. Section 8 of the Act of 2001
is thus quoted hereunder:
"8. Power to fix highway boundary, building line,
control line, etc. (1) The Highways authority of any
division may, by notification, in relation to any highway
or any area in that division, where the construction or
development of a highway is undertaken or proposed
to be undertaken, fix -
(a) the highway boundary, building line, or
control line; or
(b) the highway boundary and the building
line; and
(c) the building line and the control line:
Provided that before the publication of the notification
under this sub-section, a draft of the said notification
shall be published inviting objections, if any, on the
proposed fixation.
(2) The draft of the notification under sub-section (1)
shall contain -
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(a) all details of lands situated between the
highway boundary line and control line
proposed to be fixed and in the case of new
works, the lands and persons benefited by the
construction or development of such highway,
and;
(b) notice requiring all persons likely to be
affected by such notification, to make their
objections or suggestions, if any, in writing,
with respect to the issue of such a notification,
to the Highways authority within such period
as may be prescribed.
(3) After considering the representation. If any,
received under sub-section (2), the Highways authority
may, with the approval of the State Highways
Authority-
(i) drop the proposal to fix the highway
boundary, the building line or the control line;
or
(ii) publish the final notification under sub-
section (1) with such modifications as may be
considered necessary.
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(4) Notwithstanding anything contained in sub-sections
(1), (2) and (3), the Government may, in consultation
with the State Highways Authority, having regard to
the situation or the requirements of any highway or the
condition of the area through which such highway
passes, -
(a) fix different building line and control line
for such highway; or
(b) refrain from fixing the building line or
control line for such highway or portion
thereof."
16. Learned counsel for the appellants submits that without
following the procedure contemplated under Section 8 of the Act of
2001, the respondents were not authorised to undertake the process
for acquisition of the land. A reference of the judgment of the Apex
Court in the case of Sannarangappa (supra) has been given in
support of the argument.
17. In the instant case, we do not find any challenge to the
notification issued under Section 15(2) or notification under Section
15(1) of the Act of 2001, thereby the acquisition was undertaken and
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completed by the respondents without objection. It was not
challenged even while maintaining the writ petitions on hand.
Therefore, so far as the notification issued under Section 15(1) is
concerned, it became final. In the light of the aforesaid and in the
absence of a challenge to the acquisition of the land, the issue in
reference to Section 8 of the Act of 2001 cannot be taken up, because
notice under Sections 19(5) and 19(7) of the Act of 2001 was for
determination of compensation. In any case, for clarity, we are
considering the aforesaid issue also in the light of the judgment of the
Apex Court in the case of Sannarangappa (supra).
18. Learned Government Pleader has clarified that it is not that a
new highway has been carved out, but is an existing highway,
meaning thereby it was earlier notified with boundary. The aforesaid
otherwise remains factual issue and was not taken up by the
appellants before the learned Single Judge. In any case, to deal with
the said argument, we are required to refer Section 15(1) of the Act of
2001, which is not only a provision for acquisition of the land for
highways, but for construction of bridges, culverts, causeways and
other structures. The provision aforesaid does not provide that
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exercise therein can be undertaken only after completion of the
exercise given under Section 8 of the Act of 2001.
19. The Courts have no power to alter the provision enacted by
the legislature, though it has power to declare a provision as ultra
vires on its challenge, if it is found to be unconstitutional or suffers
from any illegality. In the case on hand, when the highway is already
existing, as is coming out from the photographs, then the process for
acquisition of a part of the land which is obstructing the existing
highway than process given under Section 8 of the Act was not
required to be undertaken for giving effect to the acquisition, by
undertaking the process given under Section 15(1) or Section 15(2) of
the Act of 2001. Therefore, the judgment of the Apex court in the
case of Sannarangappa (supra) would be of no help to the appellants
even if the issue aforesaid is allowed to be taken at the stage of
appeal.
20. We further find that the issue before the Apex Court was on
a judgment of the Karnataka High Court where a challenge was to the
validity of Section 15 of the Karnataka Highways Act, 1964. The writ
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petition therein was dismissed by the Karnataka High Court holding the
provision to be intra vires, thus, an appeal was preferred. The issue
before the High Court was not in reference to non-compliance of
Section 7 of the Act of 1964 before acquisition of the land. The
discussion of the argument was made in regard to the challenge to
Section 15 of the Act of 1964 and therein certain observations were
made, but the Apex Court dismissed the appeal and even no
interference in the acquisition was made. The aforesaid would become
clear from paragraph (8) of the judgment in the case of
Sannarangappa (supra). The process for acquisition was completed
therein followed by determination of compensation, as referred by the
Apex Court in the said judgment.
21. In view of the above, we do not find any force in the
argument raised by learned counsel for the appellants in reference to
Section 8 of the Act of 2001 and now the position is that after issuance
of notice under Sections 19(5) and 19(7) of the Act of 2001 to
determine the compensation, an award has already been passed on
31.03.2021. A challenge to the award does not exist and otherwise
we have dealt with all the issues raised before us and finding no merit
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therein, the appeals fail not only qua the challenge to the judgment
and order of the learned Single Judge, but also in reference to the
arguments raised for the first time before us and, accordingly, the
batch of appeals are dismissed.
22. There will be no order as to costs. Consequently,
C.M.P.Nos.9056, 8727, 8728, 9040 and 9050 of 2022 are closed.
23. The photograph of the existing road has been submitted by
learned Government Pleader and, for clarity, the same is annexed
along with this judgment.
(M.N.B., CJ) (N.M., J.)
14.06.2022
Index : Yes/No
bbr
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To:
1.The District Collector,
Chengalpattu District,
Chengalpattu-603 001.
2.The Special District Revenue Office,
Land Acquisition,
Highways, Metropolitan Wing,
Alandur, Chennai-600 016.
3.The Assistant Divisional Engineer (Highways),
Construction and Maintenance,
Tambaram, Chennai - 600 042.
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THE HON'BLE CHIEF JUSTICE
AND
N.MALA, J.
bbr
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14.06.2022
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