Madras High Court
Veeyel Enterprises vs State Of Tamil Nadu on 22 June, 2015
Author: Satish K. Agnihotri
Bench: Satish K. Agnihotri, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 15.06.2015 DATE OF DECISION : 22.06.2015 CORAM THE HON'BLE MR.JUSTICE SATISH K. AGNIHOTRI AND THE HON'BLE MR.JUSTICE M.VENUGOPAL W.A.Nos.1462 and 1463 of 2014 and M.P.Nos.1,1 and 2 of 2014 Veeyel Enterprises, No.13/3, Trunk Road, Nazarethpet, Poonemallee, Chennai-600 123 rep by its Managing Partner, Mr.SP.Lakshmanan .. Appellant in W.A.No.1462 of 2014 A.Ramanathan .. Appellant in W.A.No.1463 of 2014 Vs. 1 State of Tamil Nadu, rep by its Secretary to Government, Highways & Minor Ports (HN2) Department, Fort St. George, Chennai-600 009. 2. Chennai Metropolitan Development Authority, rep by its Member Secretary Egmore, Chennai-600 008. 3. The District Collector, Thiruvallur District, Thiruvallur. 4. The District Revenue Officer / Land Acquisition Officer, CMDA, Koyambedu, Chennai-600 092. 5. The Tamil Nadu Road Development Company Ltd., rep by its Managing Director, No.171, 2nd Floor, Tamil Nadu Maritime Board Building South Kesava Perumal Puram, Pasumpon Muthuramalingam Road, Raja Annamalaipuram, Chennai-600 028. .. Respondents in both writ appeals These writ appeals are preferred under Clause 15 of the Letters Patent against the orders of this Court dated 23.09.2014 made in W.P.Nos.8171 of 2014 and 8527 of 2014 respectively. For Appellants Mr.M.Venkatachalapathy, Senior Counsel for Mr.M.Sriram For Respondents Mr.P.S.Sivashanmugasundaram, Spl.G.P. for RR1,3 and 4 in both W.As. Mr.C.Johnson for R2 in both W.As. Mr.P.H.Arvind Pandian, Additional Advocate General for Mr.M.Sivavarthanan for R-5 - - - - - COMMON JUDGMENT
SATISH K. AGNIHOTRI, J.
The instant intra-court appeals are directed against two separate orders dated 23.09.2014 passed in W.P.Nos.8171 of 2014 and 8527 of 2014 respectively.
2 The facts, in brief, are that the appellant in W.A.No.1462 of 2014 is stated to be the land owner of land bearing S.No.13/3 Part, situated at Village Nazaretpet, Poonamallee Taluk,Tiruvallur District and the appellant in W.A.No.1463 of 2014 is stated to be the purchaser of vacant site to an extent of 4012.50 sq.ft from the appellant in W.A.No.1462 of 2014 (hereinafter they are referred to as first appellant and second appellant).
3 They have filed two separate writ petitions, being W.P.Nos.8171 of 2014 and 8527 of 2014, seeking to quash the notification made in G.O. (Ms.) No.224, Highways and Minor Ports (HN2) Department dated 31.12.2013 published in Tamil Nadu Government Gazette, dated 29.01.2014 and the notice dated 06.02.2014 of the fourth respondent. The first appellant is a partnership firm engaged in Engineering contractor and R.C.C. Spun pipe manufacturers. On 28.05.2013, a notice under Section 15(2) of the Tamil Nadu Highways Act, 2001 (for short the Act, 2001) was published for the purpose of acquisition of vast chunk of land, including the aforestated portion of the land owned by the appellants, in Tamil daily Makkal Kural and in English Daily Deccan Chronicle. The notice dated 31.05.2013 was also issued to the land owner, which was received by the appellants on 10.6.2013. In the said notice, the appellants were called upon to file objections, if any, within a period of fifteen days from the date of receipt of the said public notice. It was further stated that if any objection is received within the specified date, the enquiry with regard to the same would be conducted by the District Revenue Officer (Land Acquisition), Chennai on 17.6.2013.
4 According to the appellants, the objections were filed on 14.06.2013. The proposed enquiry was not held on 17.06.2013. Thereafter, objections of land owners were sent to the Highways Department. The Highways Department, vide G.O. (Ms.) No.224, dated 31.12.2013, issued a notice under Section 15(1) of the Act, 2001, which was published in the Tamil Nadu Official Government Gazette on 29.01.2014. Being aggrieved, the appellants have preferred the writ petitions, being W.P.Nos.8171 and 8527 of 2014 respectively.
5 The case of appellants before the learned Single Judge was that (i) the impugned notification issued under the provisions of Act, 2001, though dated 31.12.2013, was published only on 29.01.2014 after the Central Act, viz., the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short the Central Act) came into force with effect from 01.01.2014. As such, the same was illegal as the Land Acquisition Act stood lapsed. Thus, the impugned notification is without jurisdiction and non-existent in the eye of law; (ii) the delegation of power to other than the Collector under the provisions of this Act was not proper; (iii) the procedure as contemplated under Section 15(1) and (2) of the Act, 2001 read with Rule 5 of the Rules, 2003 framed therein, was not properly complied with; (iv) no enquiry was conducted; (v) the objection of the appellants were not properly examined as the appellants had made certain suggestions pointing out alternative proposals to save the acquisition of their lands; (vi) under the provisions of Section 5-A of the Land Acquisition Act, the land owner is entitled to a copy of the report submitted by the Enquiry Committee. The said procedure could have been adopted in these proceedings also; and (vii) the appellants, being the land owners, were entitled to have a copy of the enquiry report submitted by the enquiry committee, which was also not done.
6 The appellants have also raised other grounds before the learned Single Judge, i.e., had proper enquiry been conducted, their land could not have been acquired, as the first appellant was competent to make suggestions on the alignment and formation of the Highways.
7 On the other hand, the case of the respondents before the learned Single Judge was that as stipulated under the provisions of Section 15 of the Act, 2001, proper opportunity of hearing was afforded. The appellants have filed their objections. Thiru Subramanian, Managing Director of the first appellant, had participated in the enquiry held on 17.06.2013. The land in question was required for greater public purpose, i.e., construction of highways. The provisions of law were strictly adhered to in its letter and spirit.
8 The learned Single Judge dismissed the writ petitions by two separate orders dated 23.09.2014, holding as under :
24. From the above discussions, this Court is of the view that :-
(i) the fourth respondent, viz., The District Revenue Officer / Land Acquisition Officer had acquired the lands to form an Outer Ring Road to allow heavy duty vehicles to traverse outside of the Chennai City, in order to regulate the traffic congestion within the City's Central areas which is of paramount importance to general public.
(ii) The respondent had given paper notification for acquiring the petitioner's land as well as others on 28.05.2013. Besides the fourth respondent had issued a notice under Section 15(2) of the Tamil Nadu Highways Act on the petitioner and his representative had participated in the said enquiry held on 17.06.2013. Therefore, sufficient opportunity had been given to the petitioner before acquiring the land.
(iii) Now, the project of the respondent is a major one. Therefore, it should be completed within the stipulated period as decided by the respondents themselves. Therefore, the respondent's Land Acquisition Proceedings should be entertained in order to achieve the project aims for the welfare of the general public.
25. On considering the facts and circumstances of the case and arguments advanced by the highly competent counsel appearing for the petitioner and the learned counsels appearing for the respondents and on perusing the relevant documents and this Court's view listed as (i) to (iii), this Court is not inclined to allow the writ petition since it does not possess adequate force to consider quashing of the respondent's proceedings. 9 Dis-satisfied with the said orders passed by the learned Single Judge, the writ petitioners have preferred the instant intra-Court appeals.
10 Mr. M. Venkatachalapathy, learned Senior Counsel appearing on behalf of both the appellants, after addressing the Court at length, had filed a written submission. The prime contention of the learned Senior Counsel before us is that under the provisions of Section 15(2) of the Act, 2001, the Land Acquisition Authority is obliged to issue a show cause notice to the owner and any other person having an interest in the land in question. The procedure for issuing notice, conducting enquiry and submitting report as contemplated under provisions of Rule 5 of the Tamil Nadu Highways Rules, 2003 (for short the Rules, 2003) was not adhered to.
11 The next contention of the learned Senior Counsel is that the notice issued to the appellants did not contain any date, but, only the month 5/2013 which was served on them on 10.06.2013. Thus, counting 15 days from the date of service of the notice, enquiry could not have been conducted before expiry of 15 days. Under provisions of Rule 5(2) of Rules, 2003, the date of enquiry could have been fixed only after receipt of objections, but in the case on hand, the enquiry was fixed in the show cause notice itself issued under Rule 5(1) of the Rules, 2003, which is illegal and invalid. Under Rule 5(3) of the Rules, 2003, it is stipulated that on the date fixed for enquiry, the objector shall be heard and any evidence produced in support, thereof, should be considered and examined. Thereafter, the enquiry report is to be submitted to the Government under provisions of Rule 5(4) of the Rules, 2003. The process adopted by the authority was not in accordance with the requirement of law, as the show cause notice dated 31.05.2003, calling upon the owner to submit objection indicated the date of enquiry to be held on 17.06.2013. The said show cause notice was served only on 10.06.2003. Thus, no enquiry could have been held before completion of 15 days time.
12 Lastly, it is contended that since the procedure contemplated, as submitted hereinabove, was not conformed to properly, the entire procedure is vitiated. Consequently, the impugned notification is liable to be quashed.
13 On the other hand, Mr. P.H. Arvindh Pandian, learned Additional Advocate General appearing for the fifth respondent in both the appeals would submit that Rule 5(2) of the Rules, 2003, contemplates holding of an enquiry, which was duly notified in the show cause notice itself. The enquiry was conducted after receipt of the objection dated 14.06.2013, on 17.6.2013. There was a proper representation on the part of the appellants in the enquiry. The same were duly considered by the competent officer and the appellants' objections were not found feasible. Thus, at this stage, the appellants are estopped from contending that enquiry was not conducted as contemplated under the provisions of the Rules, 2003.
14 The next submission of the learned Additional Advocate General is that the design in question was approved by the National Highways Authority of India with due consideration of all the various alternatives suggested by the appellants and such alternative proposals suggested by the appellants cannot be favourably considered at this stage inasmuch as more than 95% of the road work has been completed and the balance work is now pending for the provision of project facilities. The appellants' lands were required for the formation of Interchange at NH-4. The Government, after considering the objections of the appellants and the remarks of the Requisitioning Authority, have decided to acquire the land in question.
15 The further contention of Mr.P.H.Arvindh Pandian, is that the objections are required to be filed within fifteen days from the date of public notice, which was published in two local dailies on 28.5.2013 and in the locality on 29.5.2013. The objection was filed subsequently. It is also contended that Rule 5 of Rules, 2003 does not contemplate fifteen days notice under individual notice for submitting the objection, if any. In regard to the argument of validity of the Act, it is contended that the Act, 2001 is exempted under the provisions of Section 105-A of the Central Act, by including the Act, 2001 in the Fifth Schedule of the Central Act.
16 Lastly, it was contended that Section 5-A referred to by the appellants relates to the Land Acquisition Act, 1894, whereas, in the cases on hand, the land acquisition proceedings are initiated under the Act, 2001, in which, there is no provision to communicate the decision, i.e., the report, taken by the competent authority to the objectors.
17 Considering the rival contentions advanced by the learned counsel appearing for the parties, it is evident that the facts are undeniable and indisputable, except the fact of conducting the enquiry on 17.6.2013. According to the appellants, proper enquiry was not conducted on 17.6.2013. Per contra, the enquiry was properly conducted and also objections of the first appellant, who wanted to represent through Thiru Subramanian, Managing Director, was duly considered.
18 To appreciate the conspectus of the dispute, it is profitable to extract the relevant provisions of Section 15 of the Act, 2001 and Rule 5 of the Rules, 2003, as under :
Section 15 of the Tamil Nadu Highways Act, 2001 :
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 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 Deputy Collector (Land Acquisition) Tamil Nadu Urban Development Project III] as the case may be, shall 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 Deputy Collector (Land Acquisition) Tamil Nadu Urban Development Project III] 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 Deputy Collector (Land Acquisition) Tamil Nadu Urban Development Project III, 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 Deputy Collector (Land Acquisition) Tamil Nadu Urban Development Project III] as the case may be, shall hear the objector or a person authorised by him in this behalf and the representative, 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 enquiry, the Collector shall submit all the details of the enquiry to the Government to pass order 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.
19 Section 15(1) of the Act, 2001 authorises the Government to acquire the land by publishing a notice in the Tamil Nadu Government Gazette, specifying the description of such land and the particular purpose for which it is to be required. The land may be acquired under this section for the purpose of construction of any highway bridges, culverts, causeways or other structures thereon and also for other purpose incidental or ancillary thereto. Under sub section (2) of Section 15, the Government is mandated to issue show cause notice, calling upon the owner or any other person having interest in such land, specifying the time to show cause as to why the said land should not be acquired. It is also required that a public notice be given. Section 15(3) ibid, prescribes that only after considering the cause, if any, shown by the owner or other person having interest in such land, the Government should pass an order by publishing a notice under sub section (1) of Section 15.
20 Rule 5 of the Rules, 2003 framed therein provides for a mechanism for publication of the public notice. Under sub rule (1) of Rule 5, before publication of the notice under Section 15(1) of the Act, 2001, the Collector or the Special Deputy Collector (Land Acquisition), as the case may be, is obliged to call upon the owner or any other person having interest in the land to show cause as to why the land may not be required. It is further prescribed that a public notice to that effect shall be published in one English and one Tamil newspapers having circulation in the locality and also the said notice shall be displayed in the office of the Highways authorities of the division concerned, Village Administrative Officer of the village concerned and the Tahsildar of the Taluk concerned.
21 In the case on hand, a public notice was published in one English news paper Deccan Chronicle and in one Tamil newspaper Makkal Kuralon 28.5.2013, which was displayed in the locality, as aforestated, on 29.5.2013. Thereafter, the said notice in the form of show cause was issued to the land owner on 31.5.2013. Any other person having interest in the land, as aforestated, means a person, who is in occupation or in possession or having title or ownership either jointly or separately. Sub-rule (2) of Rule 5 of the Rules, 2003 sets out how to deal with the objection, if any, received from the person interested in the land. The person interested, including the owner, is required to file objections within the time prescribed in the public notice, not from the date of receipt of the personal notice, as pleaded by the appellants.
22 Rule 5(3) stipulates consideration of the objection by the Land Acquisition Officer on the fixed date for enquiry. Before the enquiry, the objection of the land owner or any other person interested in the land, is required to be supplied to the Highways Department to enable them to file a statement by way of answer to the objections and also to depute a representative, if necessary. The competent officer, who, in the case on hand appears to be the Land Acquisition Officer, is obliged to hear the objector or a person authorised by him in this behalf and the representative of Highways Department, if any and record any evidence produced in support of the objection. After conducting enquiry, the report has to be sent to the Government under sub-rule (4) of Rule 5 of Rules 2003 for consideration and passing orders under sub-section (3) of Section 15 of the Act, 2001.
23 In the backdrop of the aforestated facts, the question that primarily arises for consideration is as to (i) whether the enquiry date has to be fixed after the receipt of the objection or the date of enquiry fixed in the show cause notice itself is the substantial compliance of sub-rule (2) of Rule 5 read with Section 15(2) of the Act, 2001? and (ii) In the case on hand, when the date of enquiry was fixed in the show cause notice itself and also objection was filed before the date of enquiry, whether the mechanism prescribed under Rule 5 of Rules 2003 has been adhered to in its letter and spirit and the appellants, being land owners, are not prejudiced?
24 It is manifest that a public notice dated 28.5.2013 published in the newspapers prescribes for submission of objections in writing to the District Revenue Officer (Land Acquisition), within a period of fifteen days from the date of receipt of the public notice. The date of publication in the newspaper is presumed to be the date of notice. As such, fifteen days time shall commence from the date of publication of public notice. The personal notice was issued on 31.5.2013, as evident from the endorsement, that it was received on 10.6.2013. However, the appellants filed their objection on 14.6.2013. According to the learned Additional Advocate General, the objection was filed only on 17.6.2013, i.e., on the date of enquiry.
25 Be that as it may, there is no dispute that on the date of enquiry, i..e, on 17.6.2013, the objection was placed before the competent authority and the same was duly considered and also the case of the appellants was duly represented through Mr.Subramanian, Managing Director of the first appellant. Thus, it may not be held that enquiry was conducted ex parte or without affording proper opportunity to the land owner or any other person to submit the objection and to produce evidence in support of the objection.
26 On a careful examination of the provision of Rule 5 of Rules, 2003 read with Section 15(2) of the Act, 2001, it is evident that fixing of the date is a consequential action. After completion of fifteen days from the date of receipt of public notice and also submission of the objection, if any, the enquiry is to be held. In the case on hand, the date was fixed in the public notice itself. However, the requisite time of fifteen days was granted before the date of enquiry. The Highways Department is also entitled to a copy of the objection to place its answer and also to depute a representative. However, the Highways Department has not shown any grievance in this respect that the Department could not place its answer to the objections properly. In normal course, the enquiry should be fixed after the receipt of the objection. 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 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 vs. G. Veera Swamy and Others,1 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. 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 underno notice, no opportunity and no hearing categories, the complaint of violation of procedural provision should 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 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 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.
29 There is no statutory requirement under the provisions of Act, 2001 and Rules, 2003 like Section 5-A of the Land Acquisition Act to supply a copy of the report to the land owner or any other person having interest in such land and as such, the said provision cannot be imported into the Act, 2001, as the mechanism enshrined in Rule 5 of the Rules, 2003 affords adequate opportunity of hearing to the land owner or any other person interested in such land to place its case before final decision is taken by the Government.
30 The contention of the learned Senior counsel for the appellants that the Act, 2001 lapses on account of enforcement of the Central Act is noted to be rejected on the simple ground that the provisions of Act, 2001 is saved under the provisions of Section 105-A of Central Act, incorporated by the Tamil Nadu Amendment Act, 2014.
31 As a sequel, for the reasons and analysis aforestated, both the writ appeals are dismissed. Cost made easy. Consequently connected miscellaneous petitions are closed.
(S.K.A., J.) (M.V., J.)
22.06.2015
Index : Yes
vvk/cad
To
1.The Secretary to Government,
State of Tamil Nadu,
Highways & Minor Ports (HN2) Department,
Fort St. George,
Chennai-600 009.
2.The Member Secretary
Chennai Metropolitan Development Authority,
Egmore, Chennai-600 008.
3.The District Collector,
Thiruvallur District,
Thiruvallur.
4.The District Revenue Officer /
Land Acquisition Officer,
CMDA, Koyambedu,
Chennai-600 092.
5.The Managing Director,
The Tamil Nadu Road Development Company Ltd.,
No.171, 2nd Floor,
Tamil Nadu Maritime Board Building
South Kesava Perumal Puram,
Pasumpon Muthuramalingam Road,
Raja Annamalaipuram, Chennai-600 028.
SATISH K. AGNIHOTRI, J.
and
M.VENUGOPAL, J.
vvk/cad
Judgment in
W.A.Nos.1462 and 1463 of 2014
22.06.2015