Madras High Court
P.Ramesh vs The State Government Of Tamil Nadu on 22 March, 2022
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.03.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
W.A.No.4 of 2022
P.Ramesh .. Appellant
Vs.
1. The State Government of Tamil Nadu
Rep. by its Principal Secretary
Highways and Minor Ports (HW1) Department
Chennai 600 009.
2. The Special Deputy Collector (Land Acquisition)
Tamil Nadu Urban Development Project III
Poonamallee
Chennai 600 056.
3. The District Revenue Officer
The Revenue Department
Chennai 600 009.
4. The District Collector
Chennai Collectorate
4th Floor, Rajaji Salai
Chennai 600 001. .. Respondents
__________
Page 1 of 42
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
Prayer: Appeal filed under Clause 15 of the Letters Patent against the
order dated 16.09.2021 made in W.P.No.12053 of 2013.
For the Appellants : Mr.M.Narayanaswamy
for Appellants in WA Nos.4,
5, 6, 11 & 731 of 2022
Mr.Arun Anbumani
For M/s. Arulselvam Associates
for Appellants in WA Nos.
2169 & 2170 of 2021
For the Respondents : Mr.P.Muthukumar
State Government Pleader
Assisted by
Mr.K.M.D.Muhilan
Government Advocate
for respondents in all W.As.
JUDGMENT
(Delivered by the Hon'ble Chief Justice)
In these batch of writ appeals, a challenge is made to the
common order dated 16.09.2019, whereby, the writ petitions
preferred by the appellants were dismissed.
2. The writ petitions were filed challenging the acquisition
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
proceedings under the Tamil Nadu Highways Act, 2001 and the
Rules made therein.
3. The respondents issued a notice under Section 15(2) of the
Act of 2001, pursuant to which, the writ petitioners had submitted
their objections to the acquisition. However, without following the
mandate of Rule 5 of the Tamil Nadu Highways Rules, 2003, the
respondents proceeded to acquire the land. Therefore, a challenge
to the acquisition was made. The learned Single Judge held that
substantial compliance of the provision of law has been made and
therefore, there is no scope to interfere with the acquisition
proceedings.
4. Mr.Arun Anbumani, learned counsel appearing for some of
the appellants submits that when a challenge to the acquisition is
made, it was required to be considered in reference to the
arguments raised by the appellants and if compliance of the
provisions of law has not been made, then the notification was to be
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
interfered with. The writ petitions could not have been dismissed
finding substantial compliance of the law, whereas for acquisition of
land, the strict compliance of law has to be made, and thereby, the
finding of the learned Single Judge that substantial compliance of
provisions of law has been made for acquisition of land be
interfered.
5. Learned counsel further submits that if the acquisition of
the land is to be made for the Highways or for any purpose
incidental or ancillary thereto, the respondents are required to
comply with the provisions of the Act of 2001 and the Rules of
2003. In the instant case, the relevant provision to address the
issue is Section 15 of the Act of 2001 and Rule 5 of the Rules of
2003.
6. Referring to Section 15(2) of the Act of 2001, it is
submitted that before publishing a notice under Sub-section (1) of
Section 15, the Government needs to call upon the owner and any
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
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. In the instant case, notice under Section 15(2) of the Act
of 2001 was issued, pursuant to which, the appellants had
submitted their objections. The hearing of the objections should
have been in the manner provided in the Rules.
7. Referring to Rule 5, it is submitted that if the objections
from the person interested or the owner is received within the time
prescribed in the public notice, then the officer concerned will fix a
date for hearing of the objection giving notice thereof to the
objector as well as the Highways Department with a copy of the
objection to the Highways Department. The Department has to file
a reply to the objection or before the date fixed for it and
thereupon, on the date of enquiry, the competent officer is to hear
the objection and after recording the evidence, if any produced in
support of the objection, submit a report to the Government to pass
order under Sub-section (3) of Section 15. It is submitted that the
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
procedure given under Rule 5 of the Rules of 2003 has not been
followed in this case.
8. Referring to the date of notice and the objections submitted
by the appellants, it is submitted that ignoring that reply has not
been submitted by the Highways Department, hearing of the
objection was made with passing of the order. Therefore, Rule 5 of
the Rules of 2003 was not followed. In fact, the hearing of the
objection could not have been prior to the reply to the objection by
the Highways Department, as mandated under Rule 5 of the Rules
of 2003 and thereby, the entire process of acquisition was vitiated
due to the violation of Rule 5 of the Rules of 2003.
9. Referring to the counter, it is further submitted that the
Government did not apply its mind as the report under Section
15(2) was simply approved by the Government and therefore, even
there is violation of Section 15(1) of the Act of 2001. It is another
ground to set aside the acquisition proceedings because the purpose
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
of acquisition of land may be for development of roads, but it
cannot be in violation of the provisions of law.
10. The learned Single Judge has referred to the arguments
raised by learned counsel for the parties, but failed to give a specific
finding on each issue. Rather, a perusal of paragraph 30 of the
order shows that the learned Single Judge recorded his satisfaction
only for substantial compliance and thereby, the learned Single
Judge failed to take into account the argument and the legal
provision before recording the finding. In any case, the substantial
compliance cannot validate the acquisition, rather it should be in
strict compliance of the provisions of the law. Therefore, the prayer
is made to set aside the order so as the notification issued by the
respondents for acquisition of land.
11. At this stage, this Court, while considering the provisions
of Section 15 of the Act of 2001, realised that Rule 5 of the Rules of
2003 goes beyond the statutory provisions of Section 15 of the Act
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
of 2001. Thus, learned counsel for the appellants was asked to
analyse the legal issue as to whether the subordinate legislation can
go beyond the statutory provision. Since the issue was raised during
the course of argument, learned counsel for the appellants prayed
for time to address the issue. Accordingly, the matter was
adjourned on their request. The matter was thereupon taken up for
hearing of the issue raised by the Court and the arguments of the
learned counsel for the appellants.
12. Learned counsel for the appellant submits that if different
provisions of the Land Acquisition Act and Rules are taken into
consideration, the notice to invite objection from the owner or any
other person interested in the land and thereafter, hearing the
objectors and also the party for whom the land is to be acquired, in
the instant case, the Highways Department, cannot be taken as an
empty formality.
13. Our attention was drawn to many provisions of the Land
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
Acquisition Act, 1894 so as the other statutory provisions of
acquisition in the State of Tamil Nadu. It is with reference to the
judgment of the Apex Court in the case of State of Mysore v.
V.K.Kangan [(1976) 2 SCC 895]. Learned counsel referred to
the facts of the case and the arguments by inviting our attention to
paragraphs 2, 4, 5, 7 to 9 and thereupon, the finding recorded by
the Apex Court.
14. In V.K.Kangan supra, an argument was raised regarding
the conflict between the Rule and the statutory provision, though it
was Rule 3(b) and Section 5A (2) of the Land Acquisition Act, 1894.
The Apex Court came to the conclusion that mandate of the Rules
cannot be ignored and it is after referring to Section 5A(2). The
opinion was recorded after taking note of the object sought to be
achieved. As per Rule 3(b), the requirement was to call upon the
party for whom the acquisition of the land is to be acquired. In that
case, the party in whose favour land was to be acquired was not
called upon and therefore, finding violation of Rule 3(b), the
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
interference with the acquisition was made by the High Court and it
was upheld by the Apex Court. The argument in regard to the
conflict between the Rules and the Act has been made, but was not
accepted. The ratio propounded therein applies to the facts of this
case.
15. Further reference of the recent judgment of the Apex
Court in the case of National Highways Authority of India v.
Pandarinathan Govindarajulu [(2021) 6 SCC 693] has been
made. Reference to paragraph 8 of the judgment was given to
invite the attention of the Court about the outcome of the conflict
between the Act and the Rules. It was thus submitted that even if
there is a conflict between the Act and the Rules, mandate of the
Rule cannot be ignored when the purpose sought to be achieved is
fulfilled by applying the Rule. In the instant case, Section 15(2) of
the Act of 2001 is akin to Section 5A of the Land Acquisition Act,
1894 and thereby, the respondents were under an obligation to
apply the mandate of Rule 5 of the Rules of 2003.
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
16. At this stage, it was also submitted that the issue
regarding conflict between the Act and the Rules was not raised by
the respondents or by the Court while hearing the writ petitions.
Thus, the issue cannot be opened by this Court even if it is a legal
issue and in support of the argument, reference of the judgment of
the Apex Court in the case of Hassan District Central
Cooperative Bank Limited v. Joint Registrar Cooperatives
[(2011) 15 SCC 108] was made. Paragraphs 7, 8 and 10 of the
said judgment were referred to indicate that when the High Court
addressed the issue going beyond the prayer in the writ petition, an
interference in the judgment was made by the Apex Court.
Accordingly, it is submitted that the issue raised by the Court was
not an issue before the learned Single Judge and even no prayer
was made by the appellants in that regard so as the objection by
the respondents.
17. Mr.M.Narayanasamy, learned counsel appearing for some
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
of the appellants have adopted the arguments made by Mr.Arun
Anbumani, learned counsel.
18. The respondents have contested the appeal and raised an
argument to support the order and even on the legal issue. It is
submitted that due to the interim order during the pendency of the
writ petition and even appeal, the development work of laying the
roads have been hampered. The purpose of the acquisition was to
construct a highway for the benefit of the people of Tamil Nadu,
but, it has been seriously affected due to the interim order passed
by this Court. Taking note of the purpose of acquisition in public
interest and referring to the judgment of the Apex Court in that
regard, the learned Single Judge rightly dismissed the writ petition.
It is when the substantial compliance of Section 15 of the Act of
2001 was found.
19. Learned Government Pleader, referring to the issue raised
by the Court during the arguments, submits that subordinate
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
legislation can supplement the statutory provision, but cannot
supplant it and if there is a conflict between the statute and the
subordinate legislation, to the extent of conflict, the subordinate
legislation cannot be given effect to and thereby, even challenge to
the validity of subordinate legislation is not necessary for that
purpose. Accordingly, it is submitted that the argument raised by
learned counsel for the writ appellants does not fall within the
purview of Section 15 of the Act of 2001, which is a substantial
provision and if Rules have been framed in derogation or in conflict,
to the extent of conflict, it needs to be ignored and accordingly,
prayer was made to dismiss the appeals, so that with the
completion of acquisition, development work may be carried out.
20. We have considered the submissions of the rival parties
and perused the records.
21. The challenge to the order of the learned Single Judge has
been made on many grounds and in reference to the provisions of
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
the Act of 2001 and the Rules of 2003 and therefore, it would be
gainful to refer to the relevant provisions to address the rival
arguments of the parties and for that purpose, Section 15 of the Act
of 2001 and Rule 5 of the Rules of 2003 are extracted hereunder:
"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.
(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
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
may deem fit."
"Rule 5 of the Tamil Nadu Highways Rules, 2003:
5. Manner of publication of the public notice.--- Before
publishing a notice under Sub-section (1) of Section 15, the
Government or the Collector or the Special District Collector
(Land Acquisition), Tamil Nadu Urban Development Project-
III or the Special District Revenue Officer (Land Acquisition)
as the case may be, 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 Sub-section 2 of section 15, the
Government or the Collector or the Special District Collector
(Land Acquisition), Tamil Nadu Urban Development Project-
III or the Special District Revenue Officer (Land Acquisition)
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
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 or the Special District Collector
(Land Acquisition), Tamil Nadu Urban Development Project-
III or the Special District Revenue Officer (Land Acquisition)
as the case may be, a statement by way of answer to the
objections and may also depute a representative to attend the
enquiry;
(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 District Collector (Land
Acquisition), Tamil Nadu Urban Development Project-III or
the Special District Revenue Officer (Land Acquisition) 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
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
under Sub-section(3) of Section 15;
(5) Where the enquiry is conducted by the Government
, the Government will pass order under Sub-section (3) of
Section 15."
(emphasis supplied)
22. It is not in dispute that as per Section 15(2), a notice was
published by the respondents to call upon the owner or the person
interested in such land. It is to show cause as to why the land
should not be acquired. Section 15(2) of the Act of 2001 is not
similar or same as Section 5A of the Land Acquisition Act of 1894.
But, largely driven by the provisions of Section 5A of the Act of
1894 and Rule 5 of the Rules of 2003, arguments have been made
though Section 5A of the Act of 1894 has no application in this case.
Section 15(2) requires a show cause notice to the owner or the
person interested as to why the land should not be acquired. It does
not provide for an enquiry after a copy of objection to Highways
Department.
23. A reference to Section 15(2) is given to find out as to
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
whether the compliance of the aforesaid provision has been made
or not. It is not in dispute that the respondents had issued a notice
under Section 15(2) to the owner or the person interested and in
response to it, the objections were submitted, though not provided
under the Act. In any case, even if we take it to be in reference to
Section 15(2) of the Act of 2001, there is no further provision under
the Act of 2001 for hearing and a decision thereupon by the Land
Acquisition Officer, as otherwise given under Section 5A of the Act
of 1894. But, contrary to what has been provided under Section
15(2), Rule 5 requires not only a hearing, but a copy of objection to
the Highways Department for whom the land is to be acquired. The
procedure to that extent was followed, but without waiting for reply
by the Highways Department, hearing followed by an order was
passed on the objections, though subsequent to the date of hearing
by the competent authority, reply was submitted by the Highways
Department.
24. Before we address the issue aforesaid, it would be
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
necessary to find out as to whether the Court could shut its eyes on
the conflict of the subordinate legislation with the statutory
provision, even if it was not argued by any of the parties before the
learned Single Judge. The Court is under an obligation to consider
the judgment of the Apex Court and the issue that needs to be
discussed. This being the legal issue, this Court had given liberty for
the writ appellants to argue the issue as to what would be the
consequences if there is a conflict in the subordinate legislation and
the statute. The time prayed for it was given by adjourning the case
on the earlier occasion.
25. Learned counsel for the appellants has made a reference
to Section 66 of the Act of 2001 to invite the attention of the Court
about the rule making power of the State Government. It is not in
dispute that by exercising the power under Section 66 of the Act of
2001, the Rules of 2003 were framed. The question is as to whether
the Rules can go beyond the scope of the statute. The subordinate
legislation can supplement the statutory provision, but cannot
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
supplant it. For reference, the judgment of the Apex Court in the
case of Babaji Kondaji Garad v. Nasik Merchants Co-op. Bank
Ltd. [(1984) 2 SCC 50] would be relevant. In paragraph 15, the
issue was discussed and answered. For ready reference, paragraph
15 of the judgment is quoted as under:
"15. Sec. 73B provides a legislative mandate. Rule 61
has a status of subsidiary legislation or delegated legislation.
Bye-law of a co-operative society can at best have the status
of an Article of Association of a company governed by the
Companies Act, 1956 and as held by this Court in Co-
operative Central Bank Ltd. and others v. Additional
Industrial Tribunal, Andhra Pradesh and Others the bye-laws
of a co-operative society framed in pursuance of the
provision of the relevant Act cannot be held to be law or to
have the force of law. They are neither statutory in character
nor they have statutory flavour so as to be raised to the status
of law. Now if there is any conflict between a statute and the
subordinate legislation, it does not require elaborate
reasoning to firmly state that the statute prevails over
subordinate legislation and the bye-law if not in conformity
with the statute in order to give effect to the statutory
provision the rule or bye-law has to be ignored. The
statutory provision has precedence and must be complied
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
with. Further the opinion of the Deputy Registrar as
expressed in his circular dated February 1, 1979 and his
letter dated June 4, 1979 has no relevance because his lake of
knowledge or misunderstanding of law as expressed in his
opinion has no relevance. The High Court relying upon the
aforementioned two documents observed as under:
"There is no inconsistency between Section 73B
and the bye-laws because even the Government has
construed Section 73B in such manner that even
though the bye- laws are not amended and reserved
seats remain unfilled by election the same can be
filled up by co-option."
With respect, we find it difficult to subscribe to this
untenable approach that a view of law or a legal provision
expressed by a Government Officer can afford reliable basis
or even guidance in the matter of construction of a
legislative measure. It is the function of the Court to
construe legislative measures and in reaching the correct
meaning of a statutory provision, opinion of executive
branch is hardly relevant. Nor can the Court abdicate in
favour of such opinion.
(emphasis supplied)
26. There the issue was in regard to the conflict between
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
Section 73B and Rule 61 of the Rules. It was held that if there is
any conflict between the statute and the subordinate legislation, it
does not require elaborate reasoning to firmly state that statute
prevails over the subordinate legislation and bye-law or regulation if
not in conformity with the statute, in order to give effect to the
statutory provision, the Rule or bye-law has to be ignored. The
statutory provision has precedence and must be complied with.
27. In the case of Babaji Kondaji Garad supra, there was no
challenge to the Rule. But, the Court noticed the conflict of the Rule
with that of statutory provision. The ratio propounded and the law
known in our country is that subordinate legislation cannot be in
conflict with the statutory provisions. The subordinate legislation
has to be subservient to the statutory provision and cannot be in
conflict to it and thereby, we cannot ignore the legal issue that
came up before this Court in the course of hearing and for which,
an opportunity was given to the appellants and therefore, the
learned counsel cited the judgment of the Apex Court to hold that
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
even if the Rules are not in consonance to the statute, mandate of
the Rules has to be complied.
28. Firstly, we would refer the judgment of the Apex Court
relied upon by learned counsel for the appellants in the case of
V.K.Kangan supra. Paragraphs 2, 4, 5 and 7 to 9 of the said
judgment, referred to by learned counsel for the appellant, are
extracted hereunder:
"2. The respondents attacked the validity of the
notification on the ground that the Education Department at
whose instance the land was sought to be acquired was not
given notice as required under rule 3(b) of the Madras Land
Acquisition Rules as in force in the Madras area of the State
of Mysore at the time of inquiry under Section 5A and that
since the requirement of notice as enjoined by Rule 3(b) was
mandatory, the failure to comply with that requirement
rendered the notifications under Sections 4 and 6 of the Act
invalid.
...
4. The only point which arises for consideration is
whether the pro visions of Rule 3(b) were mandatory and
therefore the failure to issue the notice to the department
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
concerned as enjoined by the rule was fatal to the validity of
the notifications under Sections 4 and 6 of the Act.
5. The reasons which impelled the High Court to come
to that conclusion were, if the Department to which a notice is
issued files any reply by way of answer to the objections, the
objector will know what the Department has stated by way of
reply and, at the stage of hearing of objections, he (the
objector) may adduce evidence or address arguments to meet
what has been stated in such reply, and that the objectors will
have an opportunity of urging before the Government that the
reasons given by the Department in the reply to the objections
should not be accepted.
...
7. The learned Solicitor General, appearing on behalf
of the appellants submitted that Rule 3(b) is inconsistent with
Section 5A(2) for the reason that Section 5A(2) itself provides
for making further inquiry which the Collector thinks
necessary after considering the objections filed by the owner
or the person interested in the land and to read Rule 3(b) as
casting a mandatory duty upon him to give notice of the
objection to the department requiring the land and to
consider the answer to the objection, if any, filed by the
Department would be contrary to the section. The argument
was that when Sub-section (2) of Section 5A provides for
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
further inquiry in the discretion of the Collector, a rule
making it mandatory that the Deputy Commissioner (the
Collector) should give notice of the objection to the
department concerned and consider its answer to the
objection would be to convert a discretionary power into a
mandatory duty and is therefore ultra vires the section.
8. We do not think that the contention is right. What
the material provision of Section 5A(2) says is that "the
Collector shall give the objector an opportunity of being
heard either in person or by pleader and shall after hearing
all such objections and after making such further enquiry if
any as he thinks necessary". This does not mean that a rule
cannot be framed by the rule-making-authority for the
guidance of the Deputy Commissioner (the Collector) which
would enable the Department concerned to place its view-
point before him when considering the objection under
Section 5A. The proceedings of the Collector are quasi-
judicial and it is only proper that he should be apprised of the
attitude of the department requiring the land in the light of the
objections filed. If the department requiring the land thinks, in
the light of the objection, that the land sought to be acquired
is not necessary for the purpose for which it was required to
be acquired or that more suitable land is available in the
vicinity, it is only fair that the Deputy Commissioner
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
(Collector) is informed about it. The answer of the
department to the objection filed by the objector, even if
adverse to the objector, would, at any rate, enable the
Collector to bring a more informed and rational approach to
the controversy before him. The Collector has to send his
recommendation to Government on the basis of his finding
together with the record of the proceedings for the ultimate
decision by the Government. It would be helpful to the
Government in making the decision to have before it the
answer to the objection by the department in order to
appreciate the rival view points. We do not think that Rule
3(b) was ultra vires the Section.
9. We also think that the government when it framed
the rule had in mind that the Deputy Commissioner
(Collector) should follow it while functioning under Section
5A(2) and so the requirement of the rule was mandatory."
(emphasis supplied)
29. In paragraph 7, the argument was raised that Rule 3(b) is
inconsistent with Section 5A(2) of the Act. The Apex Court held that
Rule 3(b) is not ultra vires to the statute. The issue was considered
in reference to Section 5A of the Act of 1894 which is substantially
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
different from Section 15(2) of the Act of 2001. Section 5A of the
Act of 1894 mandates hearing of the objector and after making
such further enquiry, if any as the Collector thinks necessary, while
Section 15(2) of the Act of 2001 does not provide for enquiry as the
Collector thinks fit. The judgment aforesaid has been given on its
fact and the provision considered therein were different from the
one to be addressed by us. It would become clear from a bare
reading of Section 5A(2) considered by the Apex Court in the said
judgment and referred the provision in paragraph 8 of the
judgment.
30. Section 5A(2) requires the Collector to give an opportunity
of hearing to the objector and that too, hearing in person or by the
pleader and after hearing the objection and making such further
enquiry if any as he thinks necessary. The interpretation of Section
5A(2) of the Act of 1894 was given to hold that the provision itself
provides for an opportunity of hearing to the objector and after
making such enquiry, if any, as he thinks necessary. By enlarging
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
the scope in reference to the object sought to be achieved, it was
held that Rule 3(b) is not in conflict with Section 5A(2) because the
Collector, for the purpose of enquiry, could have called the
department for whom the land is to be acquired.
31. In our opinion, the judgment in the case of V.K.Kangan
supra would have no application to the facts of this case so as the
legal provision involved in this matter. Section 15(2) of the Act of
2001 is not worded in the manner Section 5A(2) of the Act of 1894
and considered by the Apex Court in the case of V.K.Kangan
supra. Rather, Section 15(2) of the Act of 2001 requires only a
show cause notice to the land owner or the interested person to
show cause as to why the land should not be acquired. It does not
direct for such a procedure to be applied as otherwise envisaged
under Section 5A(2) of the Act of 1894 and considered by the Apex
Court in the case of V.K.Kangan supra.
32. The provisions of Section 15(2) of the Act of 2001 is not
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
akin to Section 5A of the Act of 1894 and this Court is not having
power to substitute the word of statute so as to accept the
argument raised by learned counsel for the appellants. Section
15(2) does not provide for an enquiry after calling the Highways
Department though Rule 5 mandates the aforesaid. The conflict
between the statutory provision and the subordinate legislation in
the instant case is apparent on the face of the record and to that
extent, Rule which is found to be in conflict with the statutory
provisions need to be ignored in the light of the judgment of the
Apex Court in the case of Babaji Kondaji Garad supra.
33. At this stage, we would further refer to another judgment
of the Apex Court, relied upon by learned counsel for the appellant
and that too, the recent judgment in the case of National
Highways Authority of India. Paragraph 8 of the said judgment
was referred to by learned counsel for the appellant and it is quoted
hereunder:
"8. A statutory rule or notification is to be treated as a
part of the statute. Rules made under a statute must be treated
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
for all purposes of construction or obligation exactly as if
they were in the Act, are to be of the same effect as if they are
contained in the Act, and are to be judicially noticed for all
purposes of construction or obligation. The principles of
interpretation of subordinate legislation are applicable to the
interpretation of statutory notifications. If the words of the
statute are in themselves precise and unambiguous, then no
more can be necessary to expound those words in their
natural and ordinary sense. The words themselves do alone in
such cases best declare the intent of the law giver."
34. It is to emphasis that a statutory rule or notification is to
be treated as a part of the statute and the Rules made under a
statute must be treated for the purpose of construction or obligation
exactly as if they were in the Act. The judgment aforesaid was
referred to impress upon the Court that after the Rules framed by
the Government by drawing powers under Section 66 of the Act of
2001, it became a statute. The argument aforesaid has been raised
in ignorance of the fact that subordinate legislation cannot be taken
as statute despite being in conflict. The judgment supra rather
support the proposition of law on the subject. The Rules would have
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
mandatory effect if it is not in conflict with the statute. Rather, it is
brought for the purpose of construction or obligation given under
the Act. But, when there is a conflict between the statute and the
subordinate legislation, to the extent there is a conflict in the
subordinate legislation, it has to be ignored. In the case of
National Highways Authority of India, it is held that if the
words of the statute are in themselves precise and unambiguous,
then no more can be necessary to expound those word in their
natural and ordinary sense. It is otherwise settled law that in case
of conflict, the Rules (subordinate legislation) has to be ignored.
35. We would further refer to the judgment of the Apex Court
in the case of Hassan District Central Cooperative Bank
Limited supra, which has been referred to by learned counsel for
the appellants to state that the issue raised by this Court was not
before the learned Single Judge as it was not raised by the
appellants or by the respondents. Paragraph 7, 8 and 10 of the said
judgment has been referred. We have considered the said judgment
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
also to answer the issue as to whether the Division Bench could
have taken the issue for its answer by the parties even if it was not
raised.
36. While hearing the appeal, the Division Bench had gone
through Section 15(2) of the Act of 2001 and Rule 5 of the Rules of
2003 because the main argument of learned counsel for the parties
was regarding non compliance of Rule 5 of the Rules of 2003. It was
then realised that Rule 5 could be considered to the extent that it is
in conformity with Section 15(2) of the Act of 2001 and not beyond
that and as it being the legal issue and to address it, time was
sought and granted to learned counsel for the appellants. It was in
the circumstances that challenge to the acquisition was made in
reference to the violation of Rule 5(2) and (3) of the Rules of 2003.
37. The issue was then argued at length on the next date of
hearing in reference to the legal issue raised by the Court and the
matter was adjourned even thereupon so that detailed argument on
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
the issue can be made.
38. It is settled proposition of law that the legal issue can be
raised any stage and otherwise, the Court cannot shut its eyes to
the legal issue so as to endorse the argument on facts, without
realising the infirmity in the Rules. However, at the same time, the
Court is under an obligation to give proper hearing to the parties to
address the legal issue which has been complied herein. Therefore,
it is only that judgment of the Court would be a surprise to the
parties, rather it is after giving a detailed hearing on the issue.
39. If we assume that the issue cannot be taken by the Court,
then what we would be endorsing is nothing but illegality not only
to give interpretation to Rule 5 of the Rules of 2003, despite it to be
inconsistence to the statute. The endorsement of illegality by the
Court would be nothing but failure of justice. Therefore, the Court
is clothed with the power to take up the legal issue at any time and
also for the parties to raise the legal issue at any stage, even if it is
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
not raised before the Court below. The legal issue can be raised at
any time and at the time of even appeal.
40. The only requirement is to give a proper opportunity to
the parties to address the legal issue which has been complied
herein. Thus, with due respect, we cannot apply the judgment of
the Apex Court in the case of Hassan District Central
Cooperative Bank Limited supra to the instant case when the
issue was given for debate to the parties and is legal. Accordingly,
we proceeded to analyse the judgments referred by learned counsel
for the appellants to state that even if there is some conflict
between the statute and the subordinate legislation, mandate of the
subordinate legislation should be followed.
41. As we have recorded our finding that there is a conflict
between the statute and the subordinate legislation, what is
required to be done by the Court is to go within the parameters of
the statute and the Rule to that extent has to be complied with in
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
consonance with the statutory provisions and not in conflict with the
statutory provisions. Reiterating the arguments and the issue, we
again record our finding that Section 15(2) of the Act of 2001 is not
in pari materia to Section 5A of the Act of 1894.
42. Learned counsel for the appellants largely argued the case
with reference to Rule 5 of the Rules of 2003 while giving effect to
the statutory provisions of Section 15(2) to mean notice to show
cause not only for hearing of the objection to the show cause
notice, but a reply by the Highways Department and thereupon a
hearing. Section 15(2) does not provide for an enquiry in the
manner given under Section 5A of the Act of 1894, though it
provides that Government shall cause a public notice to be given in
such manner as may be prescribed and therefore, an argument was
raised that it has been prescribed under Rule 5 of Rules of 2003.
43. We agree with learned counsel for the appellants to that
extent. But, prescription of the manner of causing a public notice
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
cannot mean to change the provisions of Section 15(2) to mean
that while prescribing the manner of causing notice, which is the
publication of notice in newspaper etc., the Rule can further provide
invitation of the objection and thereupon, not only hearing by
causing notice to the Highways Department for whom the land is to
be acquired, but also allow the parties to even lead evidence. If
Rule 5 is read in totality, it is in conformity with Section 15(2) of the
Act of 2001 to the extent of Rule 5(1) of the Rules and Rule 5(2)
and (3)
44. Rule 5(1) of the Rules of 2003 provides the manner of
issuance of notice which needs to be published in two newspapers,
out of which one should be in English and the other one in Tamil
having circulation in the locality and it should then be pasted on the
office of the Highways Authority of the Division concerned, Village
Administrative Officer of the Village concerned and Tahsildar of the
Taluk concerned. Beyond Rule 5(1), Rule 5 provides the manner of
hearing of the notice which is not provided under Section 15(2).
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
Hence, Rule 5(2) and (3) is to be ignored, as it is not in conformity
with Section 15(2) of the Act of 2001.
45. In the light of the aforesaid finding, if the facts of this
case are considered, the requirement given under Section 15(2) of
the Act of 2001 was complied with the issuance of notice to the
owner or the person interested and with the reply thereupon.
Beyond that, if the Rule was not complied in reference to Rule 5(2)
to Rule 5(3), being not in consonance with Section 15(2), it needs
to be ignored.
46. At this stage, we need to notice that after the compliance
of Section 15(2), i.e. issuing show cause notice to the owner and
the person interested as to why the land should not be acquired and
considering the reply, a report was given. However, learned counsel
for the appellants submitted about the violation of Section 15(1) of
the Act of 2001 also. It is submitted that there is no application of
mind by the Government because on the submission of the report,
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
it was sent for notification without applying its mind.
47. A perusal of Section 15(1) does not show or mandate an
application of mind by the Government going deep on the issue
raised by the appellant when report is submitted, but only to record
satisfaction that the land is acquired for the purpose of construction
of roads, bridges, culverts, causeways or other structures thereon
or for any purpose incidental or ancillary thereto. In the instant
case, the land in question is sought to be acquired for the
construction of highway. Therefore, on satisfaction, the matter was
sent for the issuance of notification in compliance of Section 15(1)
of the Act of 2001. Section 15(1) does not mandate that satisfaction
of the Government should be in writing, rather it could be inferred
once it is sent for notification that land is required for the purpose
given under Section 15(1) of the Act. In view of the above, we do
not find even infringement of Section 15(1) of the Act of 2001. It is
not a case where land was acquired for the purpose other than what
is given under the Act of 2001.
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
48. As we have recorded our finding in reference to Rule 5(2)
to Rule 5(3) to be not enforceable being in conflict with Section
15(2), we are not required to address the issue in regard to the
alleged violation of Rule 5(2) to Rule 5(3) though we are conscious
of the fact that the issue in reference to the compliance of the Rules
of 2003 has been contested before the learned Single Judge and in
fact, addressed therein.
49. Once we have recorded our opinion that Rules can be read
to the extent it serves the purpose of the statute and not to the
extent it remains in conflict, we are not required to address the
other issues in reference to the Rules, which are in conflict with the
statutory provisions. Though the learned Single Judge has recorded
his finding that even the compliance of the Rules have been made
substantially, which has been contested by learned counsel for the
appellants. Since we have recorded a finding that Rule 5(2) to 5(3)
are in conflict with the provisions of the Act, we are refraining
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
ourselves from addressing the issue further in reference to alleged
violation of Rule 5(2) of the Rules of 2003.
50. The facts of this case show that after the issuance of
notice under Section 15(2) of the Act of 2001, the writ appellants
sent their objections and were heard, followed by report thereupon.
Thus, it is not a case where the respondents did not serve the
notice as envisaged under Section 15(2) of the Act of 2001, but
proceeded further. The only defect pointed out by the writ
appellants was about the report prior to filing of reply by the
Highways Department and otherwise report was considered by the
government before issuance of notice under Section 15(1) of the
Act of 2001. Thus, we find compliance of the provisions of the Act
of 2001 and the Rules to the extent it is not in conflict to the Act of
2001 for causing acquisition of land for the construction of highway.
51. For the reasons given above, we are unable to accept the
challenge to the acquisition and the order for the reason given by
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
us. Accordingly, the writ appeals fail and are dismissed. There will
be no order as to costs. Consequently, CMP Nos.55, 65, 86, 147,
5098 of 2022, 13702, 13703, 13712 , 13709 and 19742 of 2021 are
closed.
(M.N.B., CJ.) (D.B.C., J.)
22.03.2022
Index : Yes/No
kpl/drm
To
1. The State Government of Tamil Nadu
Rep. by its Principal Secretary
Highways and Minor Ports (HW1) Department
Chennai 600 009.
2. The Special Deputy Collector (Land Acquisition)
Tamil Nadu Urban Development Project III
Poonamallee, Chennai 600 056.
3. The District Revenue Officer
The Revenue Department
Chennai 600 009.
4. The District Collector
Chennai Collectorate
4th Floor, Rajaji Salai
Chennai 600 001.
__________
https://www.mhc.tn.gov.in/judis
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
THE HON'BLE CHIEF JUSTICE
AND
D.BHARATHA CHAKRAVARTHY, J.
kpl
W.A.Nos.4, 5, 6, 11 & 731 of 2022
and 2169 & 2170 of 2021
22.03.2022
__________
https://www.mhc.tn.gov.in/judis
