Madras High Court

The American College vs The State Of Tamil Nadu on 10 September, 2024

                                                                       W.P.(MD).No.18755 of 2024


                      BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                           DATED : 10.09.2024

                                  THE HONOURABLE Ms. JUSTICE P.T. ASHA

                                         W.P.(MD).No.18755 of 2024
                                                    and
                                    W.M.P.(MD).Nos. 15872 & 15873 of 2024

                     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 Special District Revenue Officer,
                       Competent Authority,
                       Highways Acquisition,
                       Madurai

                     4.The Special Tahsildar (Land Acquisition)
                       Highways Land Acquisition and

                     1/51


https://www.mhc.tn.gov.in/judis
                                                                                 W.P.(MD).No.18755 of 2024


                        Management Divisional
                        Madurai.                                   ... Respondents

                     Prayer:- Writ petition filed under Article 226 of the Constitution of
                     India praying for issuance of a writ of Certiorari calling for records
                     relating to the acquisition notification issued by the 3rd respondent in
                     his proceedings dated Na.Ka.No.155/2023/S.H-1 dated 24.07.2024
                     issued under Section 15(2) of the Tamil Nadu Highways Act, 2001 and
                     quash the same as illegal.


                                  For Petitioner   : M/s.M.Ajmal Khan, Senior Counsel
                                                   for M/s.Ajmal Associates.
                                  For Respondents : M/s.Veera Kathiranan, AAG
                                                        assisted by Mr.B.Saravanan
                                                        Additional Government Pleader
                                                         ORDER

The Writ petitioner has invoked the jurisdiction of this Court

under Article 226 of the Constitution of India for the issue of a writ of

Certiorari to call for the records relating to the acquisition notification

issued by the 3rd respondent in his proceedings dated Na.Ka.No.

155/2023/S.H-1 dated 24.07.2024 issued under Section 15(2) of the

Tamil Nadu Highways Act, 2001.

https://www.mhc.tn.gov.in/judis

2. The petitioner's case is as follows:-

2.1. The petitioner is a reputed college in the southern District of

Tamilnadu and has been in existence for over 130 years. The college

was established in the year 1881 by the Christian Minority

Missionaries (called the American Mission) in the same year, when the

prestigious St. Stephen College, New Delhi was established. The

building of the college which is constructed in an Anglo Saxon style is

a heritage building. The college is an autonomous college and offers 47

under graduate courses, 21 post graduate courses and 9 Research

Departments. In and around 12000 students are pursuing their

education in various courses in the petitioner college.

2.2. The college is situate right in the heart of the Madurai city

and the campus is about 45 acres. The affidavit filed in support of the

writ petition would indicate that earlier on 15.02.2018, a notification

https://www.mhc.tn.gov.in/judis

under Section 15(2) of the Tamil Nadu Highways Act, 2001

(hereinafter referred to as the 'Act') was issued by the Revenue

Divisional Officer, Madurai expressing an intent to put up a fly over

bridge, for which purpose the land of the petitioner comprised in

T.S.Nos.10,14, 15, 16 and 1 were sought to be acquired. Since the

notification has been issued by an authority who did not have

jurisdiction, the petitioner had moved W.P.(MD).Nos.6062 to 6268 of

2018 questioning the acquisition. The grievance of the petitioner on

jurisdiction was that it was only the State Government that was

competent to issue a notice under Section 15(2) of the Act. After the

filing of the writ petitions, the notification under Section 15(2) was

withdrawn the therefore by recording the same the Writs were

dismissed by orders of Court dated 04.04.2018. The Court did not

grant liberty to the respondents to issue a fresh notice.

2.3. However, on 17.04.2018 yet another notification under

Section 15(2) of the Act was issued. Once again, the writ petitioner has

https://www.mhc.tn.gov.in/judis

challenged the said notice in W.P.(MD).Nos.12847 to 12853 of 2018

by contending that in the earlier writ petition no liberty was obtained

and therefore the notification issued without liberty has to be quashed.

That apart, the petitioner had also contended that the public notice

issued under Section 15(2) and the private notice issued under the same

section had been issued by different authorities. By orders of Court

dated 13.12.2018, the notification came to be quashed.

2.4. Thereafter, the District Revenue Officer issued a notification

dated 13.11.2021 under Section 15(2) of the Act, once again expressing

the intent to acquire the lands of the petitioner for constructing a fly

over bridge. The petitioner had once again challenged the same by

filing W.P.(MD).No.22409 of 2021 by contending that the authority

who issued the notification did not have the jurisdiction and the

provisions of Section 8 Rule 5 of the Act have not been followed.

However, by an order dated 21.12.2021 the writ petition was dismissed

as premature and liberty was given to the petitioner to raise necessary

https://www.mhc.tn.gov.in/judis

objections to the notification and the respondents therein were directed

to consider the same.

2.5. Thereafter, on 25.02.2022, a notification under Section 15(1)

of the Act was issued stating that the Government was satisfied that a

total extent of 3759.5 meters was required for constructing the fly over

at Goripalayam which included the petitioner's land comprised in

T.S.Nos.1, 10 and 14 to 16. This notification was unsuccessfully

challenged by the petitioner. On 15.06.2023, Award No.5 of 2023 was

passed determining the compensation payable to the petitioner college.

By a notice dated 08.08.2023, the 4th respondent stated that the land

which forms part of the notification dated 25.02.2022 issued under

Section 15(1) of the Act stood vested with the State Government and

the petitioner was directed to produce relevant document to claim

compensation. Thereafter, the officials of the respondents had come

into the petitioner's land and had earmarked certain extent of land

which was more than the extent specified in Section 15(1) notification.

https://www.mhc.tn.gov.in/judis

Therefore, the petitioner on 08.08.2023 and 15.11.2023 requested the

4th respondent to measure and survey the land in tune with notification

dated 25.02.2022. However, this request was not heeded to

constraining the petitioner to file a writ petition in W.P.(MD).No.

27805 of 2023. When the said writ petition came up for hearing on

24.11.2023, the learned Additional Advocate General had made a

submission before the Court that only 742 Sq.mt. of the petitioner's

land was proposed to be acquired and that the lands up to the platform

situate in front of the shops belonging to the petitioner and some name

boards alone would be the subject matter of acquisition and that the

shops would not be demolished. On the basis of this submission, the

writ petition was disposed of.

2.6. However, contrary to the assurance given to the Court, on

13.01.2024, the Assistant Divisional Engineer (Highways)

Construction and Maintenance, Madurai had issued a notice to the

owners/occupiers of the various shops directing them to vacate and

https://www.mhc.tn.gov.in/judis

hand over vacant possession of the shops on or before 06.02.2024

invoking the provisions of Section 28(2)(ii) of the Act. The petitioner

had challenged this notice by filing W.P(MD).No.3129 of 2024 and

when the matter came up for hearing on 13.02.2024, the learned Judge

directed the Special Surveyor Highways Department along with the

Head Surveyor, Madurai Corporation to measure the exact land which

is proposed to be acquired as per the notification dated 13.11.2021 in

the presence of both the parties. After the survey was conducted they

had opined that there was no necessity to vacate the shops. On

24.04.2024, the writ petition was disposed of directing the 3rd

respondent to remit the compensation to the petitioner. However, to

date, compensation has not been paid to the petitioner which

constrained the petitioner to initiate contempt proceedings in Contempt

Petition (MD).No.1498 of 2024 and the same is pending.

2.7. While things stood thus, the 3rd respondent had published the

impugned public notice dated 19.07.2024 in the local newspaper viz.,

https://www.mhc.tn.gov.in/judis

Dinamalar dated 24.07.2024. This notice was issued under provisions

of Section 15(2) of the Act and it detailed that the Government

proposed to acquire additional lands for the purpose of laying the

highways road and calling for objections. Besides other lands, the

following lands of the petitioner was sought to be acquired; (i) S.No.1

to an extent of 704.9 sq.mt., (ii) S.No.10, to an extent of 999 sq.mt.,

(iii) S.No.15 to an extent of 1012.5 sq.mt. and S.No.16 to an extent of

284 sq.mt.

2.8. The petitioner has questioned the impugned notification

dated 24.07.2024 on the following grounds:-

(i). Private notice has not been issued which is a pre-requisite and

which has to be simultaneously issued along with the publication under

Section 15(2) of the Act.

(ii) Power under Section 15(2) of the Act can only be exercised

only if land is required for the purpose of constructing Highways.

(iii). Section 2 (12) of the Act defines Highways as one declared

https://www.mhc.tn.gov.in/judis

so under Section 3 of the Act.

(iv). Before issuing notice under Section 15(2) of the Act, the

Highways boundaries has to be fixed under Section 8 of the Act.

2.9. The petitioner would rely upon the judgement reported in

2013 (1) CWC 425 – CeeDeeyes Standndard Towers Pvt. Ltd.Vs.

Collector Chennai and an un-reported judgement of this Court in W.P.

(MD).No.2129 of 2012 – R.Moorthy Vs.The State of Tamil Nadu in

support of the argument that notice issued under Section 15(2) of the

Act without following the provisions of Section 8 of the Act is illegal.

2.10. The competent authority should be a Judicial Officer

(though this ground was raised, arguments have not been made with

reference to the same). Therefore, the petitioner sought to quash the

notification issued by the 3rd respondent dated 24.07.2024 through the

grant of a writ of Certiorari.

https://www.mhc.tn.gov.in/judis

3. The 1st respondent had filed a counter interalia denying the

allegations raised in the petition. The 1st respondent would describe the

proposed construction of the of bridge at Goripalayam. They would

submit that the Goripalayam Junction road has three arms. The main

arm of this bridge starts near Thamukkam ground which passes through

Devar Statue and ends at Meenakashi Womens College from where it

continues further to cross the Vaigai River as a High Level Bridge and

lands at Simmakal. Another arm splits from the main arm near Devar

Statue and lands near the Thiruvapudaiyar Temple in Sellur side. The

3rd arm has not been described in the counter. However, the 1st

respondent would submit that on the left side of the road between the

American College and Devar Statue, the traffic had been closed from

01.07.2024 and the pile work is in progress.

4. The 1st respondent would submit that originally, an extent of

3742.50 sq.mt of land was proposed to be acquired and the same was

published under Section 15(1) of the Act. It was also handed over to

https://www.mhc.tn.gov.in/judis

the Highways Department. The amount of compensation has also been

deposited to the Revenue Department. The need was felt to form a

service road on either side of the bridge for which additional land was

to be acquired. A publication under Section 15(2) of the Act was

published on 24.07.2024. For this purpose, a total extent of 10909.80

sq.mt. was proposed to be acquired and in the public notice it has been

clearly stated that an enquiry was going to be held in the District

Collector's office, Madurai on 23.08.2024 and persons objecting could

raise their objections during the enquiry meeting. Without submitting

his objections and attending the meeting, the petitioner has rushed to

the Court.

5. The 1st respondent would submit that the respondent

department is taking strenuous efforts to implement this project by

taking into account the plight of the general public. After obtaining

administrative sanction land acquisition proceedings had been initiated

way back in the year 2018 itself. The 1st respondent would counter the

https://www.mhc.tn.gov.in/judis

judgements submitted by the petitioner in 2013 (1) CWC 425 –

CeeDeeyes Standard Towers Pvt. Ltd.Vs. Collector Chennai and the

judgement in W.P.(MD).No.2129 of 2012 – R.Moorthy Vs. The State

of Tamil Nadu by relying upon a Division Bench judgement reported

in 2006 (4) CTC 640 – R.Kumar and others Vs. State of Tamilnadu ,

rep. By its Secretary to Government, Highways Department, Fort

St.George and Others.

6. The 1st respondent would submit that the proceedings under

Section 8 and Section 15 of the Act are totally different and therefore

the acquisition contemplated under Section 15 of the Act does not

require to be preceded by a notification under Section 8 of the Act.

Section 8 comes under Chapter III of the Act which deals with

restriction of ribbon development and Section 15 comes under Chapter

IV of the Act which deals with acquisition of land. They would

contend that there is no mandate requiring action under Section 8 of the

Act to be initiated prior to taking proceedings under Section 15(2) of

https://www.mhc.tn.gov.in/judis

the Act. The 1st respondent in short would submit that private need has

to give way for a larger public need.

7. The 1st respondent would submit that an acquisition has to be

first made before the development and therefore if Section 8 of the Act

has to be interpreted and meant that only after hearing parties

notification should be issued then the provisions of Section 15(2) of the

Act would be redundant. The 1st respondent would ultimately submit

that narrow construction of the provisions of the Act would defeat the

very purpose and object of the Act. Therefore, the 1st respondent sought

for a dismissal of the writ petition.

8. The 3rd respondent has filed a counter in which they would

submit that under Section 15 of the Act two types of notices are

contemplated; (i) a public notice which is shown in Form B and (ii) a

private notice which is issued to the individual land owners through the

Village Administrative Officer 15 days before the enquiry meeting, the

https://www.mhc.tn.gov.in/judis

same is shown in Form A.

9. The 3rd respondent would also try to draw the same distinction

between the Sections 8 and 15 of the Act as taken by the 1 st respondent.

The 3rd respondent would also contend that the present writ has been

filed against the estoppel principle since the earlier acquisition in

respect of the very same survey numbers have been accepted and the

compensation was claimed by the petitioner. The public purpose is writ

large. Therefore, the 3rd respondent also sought for a dismissal of the

Writ Petition.

10. The main thrust of the arguments of Mr.M.Ajmal Khan the

leaned Senior counsel appearing on behalf of the learned counsel for

the petitioner is as follows:-

a). Procedure as contemplated under the Act has not been

followed in as much as Section 15(2) notice has not been preceded by

notice under Section 8 of the Act.

https://www.mhc.tn.gov.in/judis

(b). Provisions of Section 15(2) of the Act has not been followed

in its letter and spirit in as much as the private notice has not been

issued.

(c). Description of property has not been given in the impugned

notification.

(d). The impugned notification smacks of malafides, as the land

on the opposite side has not been acquired and the petitioner is being

targeted.

11. The learned Senior counsel would rely upon the following

judgements:_

"i. 2013 (1) CWC 425 – CeeDeeyes Standard Towers

Pvt. Ltd.Vs. Collector Chennai.

ii. 2017 (12) SCC 797 – Sannarangappa Vs. State of

Karnataka and Others.

iii . 2023 SCC Online 3772 – Thirumani Dharmaraj

Vs. State of Tamil Nadu."

https://www.mhc.tn.gov.in/judis

12. The learned Senior counsel would also submit that there has

to be a declaration that the road in question is a highway under Section

3 of the Act.

13. The learned Additional Advocate General appearing on

behalf of the State would make the following submissions:-

(i) The present writ petition filed is a highly premature in as

much as only the impugned notification has been issued calling for

objections.

(ii). Sections 8 and 15 of the Act operate on different fields and

there is no necessity to first initiate proceedings under Section 8 of the

Act before initiating proceedings under Section 15 of the Act.

(iii). The road has already been declared as State highway and

therefore the arguments of the petitioner that it is not a highway cannot

be accepted.

(iv). The private notice contemplated under Section 15(2) of the

Act in respect of the petitioner could not be issued since the petitioner

https://www.mhc.tn.gov.in/judis

had moved this Court and obtained stay. As regards the others the

notice has been issued.

14. Heard the learned counsels on either side. The discussion and

findings are set out sequentially hereinbelow:

Notice under Section 8 of the Act a pre-requisite for issue of notice

under Section 15(2):

15.1. The primary argument of the petitioner is that the issue of

notice under Section 8 of the Act is a pre-requisite before proceedings

under Section 15 of the Act are initiated. Therefore, it would be useful

to briefly consider the provisions of Section 8 and 15 of the Act which

is extracted hereinbelow.

“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

https://www.mhc.tn.gov.in/judis

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

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-

(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 benefitted by the construction or development

https://www.mhc.tn.gov.in/judis

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.

(4) Notwithstanding anything contained in sub-

sections (1), (2) and (3), the Government may, in

https://www.mhc.tn.gov.in/judis

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.

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 Government

Gazette a notice specifying the description of such land

and the particular purpose for which such land is

https://www.mhc.tn.gov.in/judis

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.

15.2. Sections 8 to 14 of the Act are covered under Chapter III of

the Act under the heading Restriction of Ribbon Development.

Sections 15 to 25 fall under Chapter IV under the heading Acquisition

of Property. A reading of Section 8 (1), (2) and (3) indicates that this is

https://www.mhc.tn.gov.in/judis

a power which is exercised by the Highways Authority “of a division”.

Section 8(4) starts with a non-obstante clause and states that the

Government can in consultation with the State Highways Authority and

taking into consideration the situation and the requirements of any

highway or the condition of the area in which such highway passes, fix

different building line and control line or to refrain from fixing such

lines. Therefore, a reading of Section 8(4) makes it clear that, dehors

the provisions of Sections 8(1) to 8(3), the Government can exercise

its right under Section 8(4) of the Act. The necessity for issuing a

notice as contemplated under Section 8 (1) of the Act is done away

with in the case of a power being exercised under Section 8(4) of the

Act. Further, a reading of Section 8 and the other Sections under

Chapter III indicates that the power under Section 8 of the Act does not

contemplate an acquisition.

15.3. (a) It would be useful to understand what is meant by

Ribbon Development. The preamble of the Act reads as follows:

https://www.mhc.tn.gov.in/judis

"An Act to provide for the declaration of certain

highways to be State Highways, restriction of ribbon

development along such highways, prevention and removal

of encroachment thereon, construction, maintenance and

development of highways, and levy of betterment charges

and for matters connected therewith or incidental thereto."

(b). The statement of objects and reasons which formed the

prelude for the enactment of the Tamil Nadu Highways Act, 2001

would contain the following:

"There is no separate legislation to regulate the roads in the State other than the National Highways. It has become the imperative need to enact a separate legislation covering various aspects relating to the roads in the State, other than National Highways with a view to fix the building and control lines of such roads, to declare such roads as State Highways, Major District Roads and Village Roads, to prevent any encroachment on such State Highways, to acquire required lands for formation and development of the State Highways. It is also considered necessary that the State

https://www.mhc.tn.gov.in/judis

Highways Authorities are vested with statutory powers to undertake such measures in the public interest."

(c). What is meant by the term Ribbon Development? This term

refers to a line of houses built along existing highways (or railways or

similar linear barriers) each being secured by individual accesses. In

short, it refers to a row of buildings built along the main road. The

petitioner has submitted an Article titled Ribbon Development along

Highways and its Prevention which was published in the year 1996 by

the Indian Road Congress Special Publication 15. This Article refers to

this development as a 'menace' and a growing one with increasing

urbanization and growing pressure on land near the city outskirts for

residential and commercial purposes. The publication seeks to offer

recommendations for tackling this problem.

(d). The Article also informs us that to bring about a uniform

legal code to effectively deal with this haphazard building development

along the highways and to ensure maximum efficiency in the road use,

https://www.mhc.tn.gov.in/judis

the Government of India had drafted a model Highway Bill. The draft

bill has been circulated to all the States for concurrence and as on the

date of the publication of this Article, 5 States had conveyed their

concurrence. The Draft Bill is also appended to the Article as an

Annexure. The bill proposes that the Highways Authority with the

previous approval of the State Government shall determine the building

line and control line and should restrict the construction of a building

between the highway and the building line and between the building

line and control line. Some of the provisions of this Bill has been

incorporated into Chapter III of the Tamil Nadu Highways Act, 2001.

Therefore, from the above, it is clear that the scope and ambit of

Section 8 falling under Chapter III of the Act and Section 15 comprised

in Chapter IV are distinct and different. That apart, the petitioner's

premises will not fall under the category of Ribbon Development.

15.4. Section 15(1) of the Act opens with the following words:

https://www.mhc.tn.gov.in/judis

“If the Government are satisfied that any land is

required for the purpose of any highwayor”

This indicates that it is the subjective satisfaction of the

Government that is required for acquiring the land for forming a

highway and not the satisfaction of the Highways Authority. This

Chapter contemplates acquisition of the land, unlike Section 8, where

acquisition of land is not contemplated. Therefore, Section 8(1) to 8(3)

is the power exercised by the Highways Authority and Section 15 is the

power exercised by the Government.

15.5. The learned Senior counsel for the petitioner has relied

upon the judgement of the Hon'ble Supreme Court in the case of

Sannarangappa cited supra and had relied on paragraphs 5 and 6

thereon which reads as follows:-

“5. Thereafter under Section 8 of the State Act, a

map is to be prepared in confirming with the notification

https://www.mhc.tn.gov.in/judis

under Section 7 which is also to be published and made

available for inspection at prominent places. Under

Section 15 of the State Act acquisition of land is

contemplated at which stage again a notice is required to

be given under Section 17(1) to the affected persons to

establish their rights to the lands in question for the

purposes of compensation. Section 17(2) of the State Act

which contemplates such notice also gives an opportunity

to the affected persons to object to the quantum of

compensation and to the measurements taken.

“6. From the above narration of the relevant

provisions of the Act it clearly transpires that Section 15

of the State Act is a midway provision that the statute

contemplates. What is of significance and which impacts

the right of the landowners is the notification under

Section 7 of the State Act fixing the highway boundaries,

the building lines and the control lines. In respect of such

https://www.mhc.tn.gov.in/judis

an exercise notice under Section 7(2) of the State Act is

contemplated whereby opportunity is given to the

landowners to file their respective objections upon

consideration of which the proposal can be modified or

even abandoned. If at the stage of issuing notification

under Section 7 such an opportunity is to be given, once

the aforesaid stage is over and the map under Section 8 is

published”

15.6. However, a perusal of the the Karnataka Highways Act,

1964 indicates that Chapter Restriction of Ribbon Development

commences from Section 7 (which is more or less identical to Section 8

of the Tamil Nadu Highways Act) and includes the acquisition of land

or right of interest in land within the very same Chapter. Section 15 of

the said Act, which deals with acquisition of land or right or interest in

land does not have a similar provision as Section 15(2) of the

Tamilnadu States Highways Act. On the contrary, the language of

https://www.mhc.tn.gov.in/judis

Section 15 therein states that on the application of the Highways

Authority if the State Government is satisfied that any land is required

for the purpose of the Highway then the State Government should

publish a notification in the official gazette. Once the notification is

published, it is deemed a declaration that the land is needed for the

purpose of highways and conclusive that the land is so needed and

thereafter what is contemplated by the public notice under Section

17(1) therein is only to put the public on notice that the State

Government intends to take possession of the land or as the case may

be to extinguish any right or interest in the land and that claims for

compensation has to be made to the officer as the Highways authority

may designate. The language of Section 17(2) further confirms the

above. The acquisition of the land is therefore a fait accompli. The

Hon'ble Supreme Court taking into considering the above provisions

and taking note of the fact that the land owner under Section 15 did not

have a right to oppose the acquisition held that the provisions of

Section 7(2) therein which is similar to Section 8 of the Act has to be

https://www.mhc.tn.gov.in/judis

first completed before acquisition under Section 15 of the Act is

undertaken. Therefore, the facts and the ratio laid down in the aforesaid

judgement may not apply to the facts of the case on hand.

15.6.1. That apart, in the judgement reported in 2014 2 CWC 763

(R.Moorthy and others Vs. State of Tamil Nadu), which the petitioner

has relied on in support of the very same proposition, the learned Judge

has not considered the provisions of Section 8(4) of the Act.

15.7. In the unreported judgement in W.P.1109 of 2014

(Jayaraman and others Vs. State of Tamil Nadu), another Single

Judge of this Court had dealt with a similar contention that the

procedure under Section 8 of the Act had to be complied with before

the acquisition of land under Section 15 of the Act. The learned Judge

after extracting the provisions Chapter wise has observed as follows:-

“35. From the reading of the entire Act, it could

be seen that the Tamil Nadu Highways Act, 2001, has

https://www.mhc.tn.gov.in/judis

been enacted, not only for declaration of certain

highways, to be state highways, restriction of ribbon

development along such highways, prevention and

removal of encroachment thereon, but also enacted for

construction, maintenance and development of

highways, as well as levy of betterment charges and

for matters connected therewith or incidental thereto.

For the purpose of construction, maintenance or

development of such highways, the Collector or any

other officer, specifically appointed by the Government,

can perform the functions of the Collector, under the

Tamil Nadu State Highways Act, 2001. Appointment of

Highways Authority, has been specifically mentioned in

Section 5 of the Act.

36. Section 15 of the Act, starts with the

opening sentence, # If the Government are satisfied

that any land is required for the purpose of any

https://www.mhc.tn.gov.in/judis

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,#. The Act cannot be read and

interpreted to mean that it does not empower, the

Government or the competent authority to acquire

lands, for construction of a highways or for widening

of any road, unless and until, a road has been declared

as Highways, under Section 3 of the Act. The Act

manifestly states that for the purpose of construction,

maintenance or development of any highway lands

can be acquired. The Act provides for construction of

a highway. It provides for maintenance. An existing

road can also be declared as State Highways, and

developed. For the purpose of construction of a

highway, maintenance, development, and in sum and

substance, for the purpose of giving effect to the Act,

https://www.mhc.tn.gov.in/judis

all acts can be done by the competent authorities,

which includes acquisition of lands also.”

15.8. The learned Judge has also dealt with the argument about

cases where the road has not been declared as highways under Section

3 of the Act as follows:-

“43. If the contentions of the petitioners are to be

accepted, then there is no meaning in using the words,

“construction, maintenance and development of a road"

with reference to the object, for which, the Act has been

enacted. Sections 3 and 15 of the Act, operate separately.

Section 15 is not dependent on Section 3 of the Act. The

Act envisages and empowers the State Highway

Authorities, to acquire lands for construction or formation

of a road, which may be declared as a State Highway.

Powers exercised under Section 3 of the Act, to declare

the road, as (1) State Highway; (2) District Road; (3)

https://www.mhc.tn.gov.in/judis

Major District Road; (4) Other District Road; and (5)

Village Road, is independent of Section 15 of the Act.”

15.9. The learned Judge has placed reliance on the judgement of

the Division Bench of this Court reported in 2006 (4) CTC 640

(R.Kumar and others Vs. State of Tamil Nadu and others). The

Hon'ble Division Bench was considering a case where the acquisition

of land for the formation of highway was challenged on the ground that

the same was inconsistent with the petitioner's lawful right which had

become final under the Tamilnadu Town and Country Planning Act

and as per the planning permission issued by the 2nd respondent.. The

argument that was advanced was that alignment of the road was sought

to be altered contrary to the plan approved by the technical authorities

and further that the road has to be first declared as highways under

Section 3 of the Act before the power under Section 15 of the Act

could be invoked. The Hon'ble Bench held that the road in question

had already been declared a highway and in paragraph 22 has dealt as

follows:-

https://www.mhc.tn.gov.in/judis

22. The further argument that the authority under

TNTCP Act will have to decide the road boundaries and

also the road width does not merit any acceptance. We

hold that the present road in question, viz., OMR Road,

presently called as IT Corridor, completely comes within

the jurisdiction of the authorities under the Tamil Nadu

Highways Act and any development of the said road

including the fixation of the boundary and the width of the

road have to be decided by the authorities under this Act.

In this context, we may refer to Section 8(4)(a) of the

Highways Act, which reads as follows:

"(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-

https://www.mhc.tn.gov.in/judis

(a) fix different building line and control line for

such highway"

Hence, we hold that once it is a Highway, Highways

authorities can fix different building line and control line

for such highway.”

15.10. In the case on hand, the impugned notification itself

describes the reason for the acquisition as additional lands that are

required for the formation of the “abundant NH/SHU/73 Highway”.

Therefore, the land in question has already been declared as a highway.

Therefore, taking into consideration the language of Sections 8 and 15

of the Act, the concept of Ribbon Development, the judgement of the

Division Bench reported in 2016 (4) CTC 640 – R.Kumar and Others

Vs. State of Tamilnadu and the judgement in W.P.No.1109 of 2014,

the argument that Section 8 of the Act has to precede Section 15 of the

Act has to necessarily be rejected.

https://www.mhc.tn.gov.in/judis

MALAFIDES:

16. One of the argument that has been put forward is that the

acquisition of the petitioner's lands suffers from malafides since the

lands on the other side of the road is not being acquired and it is only

the lands of the petitioner that is time and again being acquired. This

Court had directed the learned AAG, to produce the technical sanction

for the construction of this flyover at Goripalayam including the

additional roads that are sought to be formed. The said document has

been produced and a reading of of the same would clearly show that the

lands on either side are sought to be acquired and the impugned

notification also shows the same. Therefore, the argument that only the

lands of the petitioners is sought to be acquired stands disproved.

Further, the route of the flyover bridge and the proposed road are

coming up near the petitioner's lands. Therefore, the question that their

lands are being acquired time and again has to be rejected.

https://www.mhc.tn.gov.in/judis

Provisions of Section 15(2) of the Act and Rule 5 of the Tamil Nadu

Highway Rules, herein after called the Rules not followed:

17.1. An argument has been made that individual notices have

not been sent and therefore, the impugned notice has to be quashed as it

is contrary to the language of Section 15 (2) of the Act and Rule 5 of

the Act. The respondents have shown proof that individual notices had

been given to land owners though not on the very same day as the

publication. A reading of Rule 5 of the Tamil Nadu Highway Rules

would indicate that the contents of the public notice and the show cause

notice to individual owners would have the same contents. The

petitioner has come to know about the proceeding from the publication

and has moved this Court within 7 days of its publication in the Daily.

A reading of the provisions of Section 15(2) and Rule 5 of the Act

contemplate the issue of notice in two forms. One in the form of a show

cause notice to the individual land owners and the person interested in

the lands and another in the form of a public notice published in a

Tamil newspaper as well as in an English newspaper having circulation

https://www.mhc.tn.gov.in/judis

in the locality putting the general public on notice that acquisition

proceedings are proposed to be held. It does not state that the notice has

to be issued simultaneously, it only states that this notice has to be

issued prior to publishing notice under Section 15(1) of the Act. Rule

5(2) states that where an objection is received from a person interested

then a date has to be fixed for hearing the objection and notice has to

thereafter be given to the objector as well as the highways department

and a date fixed for enquiry. In the instant case, we are still at the

threshold, namely, at the state of notice under Section 15(2) r/w Rule 5

and objections yet to be enquired into. The learned Additional

Advocate General has submitted to the Court on instructions that they

are ready to grant further time to all the landowners for submitting their

objection for which a fresh notice would be issued. Therefore, this

issue is purely procedural and does not vitiate the proceedings. Further,

the petitioner is not prejudiced by the non issue of the notice.

https://www.mhc.tn.gov.in/judis

17.2. In the judgment reported in 2015-3-L.W.662:2015 (5) MLJ

641 (Veeyel Enterprises, represented by its Managing Partner,

SP.Lakshmanan Vs. State of Tamil Nadu), the Division Bench was

considering a case, where the challenge to the acquisition proceeding

was that the procedure as contemplated under Rule 5 of the Rules had

not been followed. The Division Bench in para 26 of the said judgment

observed as follows:

"26.........However, in the case on hand, since the

objection was received much before the date of enquiry and

the appellants were aware of the date of enquiry and as

such, the appellants were not prejudiced from any angle.

The appellants had sufficient time and opportunity to place

their case before the Land Acquisition Officer in the

enquiry. Thus, it cannot be held that for want of non-

conforming to the sequence as contemplated under Rule

5(2), ibid, strictly by fixing the date of enquiry after receipt

of the objection, a prejudice has been caused to the

https://www.mhc.tn.gov.in/judis

appellants. For this technical deficiency, we are of the

considered opinion that the entire procedure cannot be

held as perverse and vitiated.

"27. In a similar situation, while considering the

non-compliance of procedural law in case of provisions of

Andhra Pradesh Land Grabbing (Prohibition) Rules, 1988,

the Supreme Court, in Pesara Pushpamala Reddy v. G.

Veera Swamy ((2011) 4 SCC 306) observed as under:

“31. In State Bank of Patiala v. S.K.

Sharma this Court relying on Dhirendra

Nath Gorai v. Sudhir Chandra Ghosh has

held: (S.K. Sharma case, SCC p. 387, para

29)

“29. … But then even a mandatory

requirement can be waived by the person

concerned if such mandatory provision is

conceived in his interest and not in public

interest.”

https://www.mhc.tn.gov.in/judis

In the aforesaid case, this Court has further

held: (S.K. Sharma case, SCC p. 389, para

33)

“33. (3) In the case of violation of a

procedural provision, the position is this:

procedural provisions are generally meant

for affording a reasonable and adequate

opportunity to the delinquent

officer/employee. They are, generally

speaking, conceived in his interest. Violation

of any and every procedural provision

cannot be said to automatically vitiate the

enquiry held or order passed. Except cases

falling under ‘no notice’, ‘no opportunity’

and ‘no hearing’ categories, the complaint

of violation of procedural provision should

https://www.mhc.tn.gov.in/judis

be examined from the point of view of

prejudice.”

32. The provisions of the Act and the Rules

mandatorily requiring notification or

publication of the notice of the case after the

Special Tribunal or the Special Court takes

cognizance are procedural provisions and

the law laid down by this Court in State

Bank of Patiala v. S.K. Sharma is that

violation of such procedural provisions will

not vitiate the proceedings unless prejudice

is caused to the party complaining of the

violation. The respondents in the two cases

before us not only had notice of the

application under Section 7-A of the Act

before the Special Tribunal but also filed

their replies to the application and got the

https://www.mhc.tn.gov.in/judis

opportunity to adduce evidence in support of

their case and had not suffered any

prejudice for non-compliance with the

provisions of the proviso to sub-section (4)

of Section 7-A of the Act or Rule 7 of the

Rules. The High Court was, therefore, not

right in quashing the proceedings before the

Special Tribunal in the present case on the

ground that a notification or notice in terms

of Rule 7(2) of the Rules had not been issued

after the case was taken cognizance of by the

Special Tribunal.”

28. The further contention of the appellants that

advice of the first appellant for the purpose of alignment

and designing of Highways was beneficial, which could

have saved the acquisition of the appellants’ land, is noted

to be rejected as it is for the Highways Department as well

https://www.mhc.tn.gov.in/judis

as the Government to satisfy the design and requirement of

the Highways. Needless to state that the Government of

Tamil Nadu have accorded administrative sanction for the

development of Chennai Outer Ring Road Phase-I under

design, build, finance, operate and transfer on annuity

basis in G.O.Ms. No. 32, Highways and Minor Ports

(HF-1) Department, dated 25.2.2009, which is not

doubted."

17.3. In the case on hand, the petitioner is aware of the contents

of the public notice under Section 15(2) of the Act r/w Rule 5 of the

Rules and therefore cannot seek to quash the entire proceedings on the

ground that the show cause notice to individuals as contemplated under

Section 15(2) of the Act and Rule 5 of the Rules has not been issued

simultaneously.

DESCRIPTION OF PROPERTY:-

18. As regards the contention that the description of the property

https://www.mhc.tn.gov.in/judis

has not been provided, the same can be addressed in the objections that

the petitioner can make in respect of the notice now issued under

Section 15(2) of the Act and is once again a procedural issue.

18.1. The argument advanced by the petitioner cannot be

countenanced for the aforesaid reason.

19. The Highways Authorities before they proceed with the

construction of Highways undertake a detailed and thorough study by

experts after which the project reports are prepared. Therefore, on the

basis of a single objection, the acquisition cannot be nullified. The

Hon'ble Supreme Court in the judgment reported in (2011) 12 Supreme

Court Cases 69 (Union of India Vs. Kushala Shetty and others)

observed as follows:

"28. Here, it will be apposite to mention that NHAI is

a professionally managed statutory body having expertise in

the field of development and maintenance of National

https://www.mhc.tn.gov.in/judis

Highways. The projects involving construction of new

highways and widening and development of the existing

highways, which are vital for development of infrastructure

in the country, are entrusted to experts in the field of

highways. It comprises of persons having vast knowledge

and expertise in the field of highway development and

maintenance. NHAI prepares and implements projects

relating to development and maintenance of National

Highways after thorough study by experts in different fields.

Detailed project reports are prepared keeping in view the

relative factors including intensity of heavy vehicular traffic

and larger public interest. The Courts are not at all

equipped to decide upon the viability and feasibility of the

particular project and whether the particular alignment

would subserve the larger public interest. In such matters,

the scope of judicial review is very limited. The Court can

nullify the acquisition of land and, in rarest of rare cases,

https://www.mhc.tn.gov.in/judis

the particular project, if it is found to be ex-facie contrary to

the mandate of law or tainted due to mala fides. In the case

in hand, neither any violation of mandate of the 1956 Act

has been established nor the charge of malice in fact has

been proved. Therefore, the order under challenge cannot

be sustained."