Madras High Court
R.Moorthy vs The State Of Tamil Nadu on 25 September, 2014
Author: R.Mahadevan
Bench: R.Mahadevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.09.2014 CORAM THE HONOURABLE MR.JUSTICE R.MAHADEVAN W.P(MD)Nos.2129 of 2013 And 2190 to 2195, 2326 to 2329 and 12639 of 2012 and 475 and 1441 of 2013 and Connected Miscellaneous Petitions (in all the writ petitions) W.P(MD)No.2129 of 2012: 1.R.Moorthy 2.Thangaraj 3.Balasubramanian 4.Kalpana 5.Sarathamani 6.Tamil Selvi 7.K.Vellaisamy 8.R.N.Ashok Kumar 9.K.K.S.V.T.Subburaj 10.A.V.Murugan 11.S.Baskaran 12.K.K.S.S.R.Ramachandran 13.M.Alagumuthu 14.R.Aathilakshmi 15.K.Anandhy 16.R.Ramesh 17.K.K.S.V.Thiruvengada Rettiar 18.D.Rajaguruvan 19.Sahadevan 20.Radhakrishnan 21.Subramanian 22.Jayakodi 23.T.Meenakshi Ammal 24.S.Ganesan] 25.I.P.V.Jayaraman 26.Virigilal 27.P.Harish Kumar 28.Vimala Virijilal 29.Motilal ... Petitioners Vs. 1.The State of Tamil Nadu, represented by its Secretary to Government, Highways and Minor Ports Department, Fort St. George, Chennai - 600 009. 2.The District Collector, Virudhunagar District, Virudhunagar. 3.The District Revenue Officer, Virudhunagar, and Land Acquisition Officer, Virudhunagar. 4.The Divisional Engineer, (Highways), NABARD & Rural Roads, Paramakudi, Ramanathapuram District. 5.The Divisional Engineer, (Highways), Virudhunagar District, Virudhunagar. 6.The Commissioner, Virudhunagar Municipality, Virudhunagar. 7.The General Manager, Southern Railways, Chennai. 8.The Superintendent of Police, Virudhunagar District, Virudhunagar. 9.The Regional Transport Officer, Virudhunagar District, Virudhunagar. 10.K.Pandiarajan ... Respondents (R.10 impleaded vide order of this Court dated 26.02.2014 made in M.P(MD)No.1 of 2013 in W.P(MD)No.2129 of 2012.) Prayer in W.P(MD)No.2129 of 2012: Petition filed under Article 226 of the Constitution of India, to issue a writ of Certiorarified Mandamus to call for the records relating to the impugned order of the first respondent insofar as item 14 of G.O.Ms.No.236 Highways and Minor Ports (HQ 2) Department, dated 03.10.2008, is concerned, G.O.Ms.No.78 Highways and Minor Ports (HF 2) Department, dated 22.06.2011 and the consequential proceedings of the third respondent published in Na.Ka.D1/5487/2010, dated 30.12.2011 duly published in Dinathanthi, Madurai Edition and quash the same as illegal, invalid, intra vires and consequently, direct the respondents 1 to 3 to implement the decision of the High Level Committee dated 24.02.2009 as stated in Letter No.L.C.403/2009/DO, dated 13.04.2009 to construct Road Under Project in Level Cross No.403 in between Virudhunagar and Thulukkapatti Railway Station. W.P(MD)No.2129 of 2012: !For Petitioners ... Mr.Veera Kathiravan ^For Respondents ... Mr.K.Chellapandian, Additional Advocate General assisted by Mr.M.Alagadevan, Special Govt. Pleader for R.1 to R.5, R.8 and R.9. Mr.N.Dilip Kumar for R.6 Mr.S.Manohar for R.7 Mr.M.Ajmal Khan, Senior Counsel for Mr.J.M.Abdul Rahman, for R.10. Mr.S.Masilamani - Party-in-person [M.P(MD)No.1 of 2014] W.P(MD)No.2326 to 2329 of 2012: For Petitioners ... Mr.N.S.Manoharan for Mr.P.Radhakrishnan For Respondents ... Mr.K.Chellapandian, Additional Advocate General assisted by Mr.M.Alagadevan, Special Govt. Pleader for R.1 to R.4. Mr.N.Dilip Kumar for R.5 W.P(MD)No.2190 to 2195 of 2012: For Petitioners ... Mr.R.Viduthalai, Senior Counsel for Mr.K.M.Vijayakumar For Respondents ... Mr.K.Chellapandian, Additional Advocate General assisted by Mr.M.Alagadevan, Special Govt. Pleader for R.1, R.2, R.4 to R.6 Mr.N.Dilip Kumar for R.3 Mr.S.Manohar for R.7 Mr.M.Ashok Kumar for impleading petitioner (M.P(MD)No.1 of 2014) W.P(MD)No.12639 of 2012: For Petitioners ... Mr.R.Vijayakumar For Respondents ... Mr.K.Chellapandian, Additional Advocate General assisted by Mr.M.Alagadevan, Special Govt. Pleader for R.1, R.2, R.4 to R.6 Mr.N.Dilip Kumar for R.3 Mr.S.Manohar for R.7 W.P(MD)No.475 of 2013: For Petitioners ... Mr.Veera Kathiravan For Respondents ... Mr.K.Chellapandian, Additional Advocate General assisted by Mr.M.Alagadevan, Special Govt. Pleader Mr.M.Ashok Kumar for impleading petitioner (M.P(MD)No.1 of 2014) W.P(MD)No.1441 of 2013: For Petitioner ... Mr.N.S.Manoharan For Respondents ... Mr.K.Chellapandian, Additional Advocate General assisted by Mr.M.Alagadevan, Special Govt. Pleader for R.1 to R.4 and R.6 Mr.N.Dilip Kumar for R.5 COMMON ORDER
Whether, the provisions of the Tamil Nadu Highways Act, 2001 is repugnant to the Central Enactment, namely Land Acquisition Act, 1894, whether the provisions of the Tamil Nadu Highways Act, 2001 has been followed before the issuance of the notification under section 15(2) of the State Act, whether it is feasible to construct a Road Over Bridge (hereinafter referred to as 'ROB') or a Road Under Bridge (hereinafter referred to as 'RUB') in lieu of LC 403 in Level Cross No.403 in between Virudhunagar and Thulukkapatti Railway Station and the effect of the new Central Act Land Acquisition Rehabilitation and Resettlement Act, 2013 are the main issues involved in all the writ petitions.
2. W.P(MD)No.2129 of 2012 has been filed seeking a writ of Certiorarified Mandamus to call for the records relating to the impugned order of the first respondent insofar as item 14 of G.O.Ms.No.236 Highways and Minor Ports (HQ 2) Department, dated 03.10.2008, is concerned, G.O.Ms.No.78 Highways and Minor Ports (HF 2) Department, dated 22.06.2011 and the consequential proceedings of the third respondent published in Na.Ka.D1/5487/2010, dated 30.12.2011 duly published in Dinathanthi, Madurai Edition and quash the same as illegal, invalid, intra vires and consequently, direct the respondents 1 to 3 to implement the decision of the High Level Committee dated 24.02.2009 as stated in Letter No.L.C.403/2009/DO, dated 13.04.2009 to construct Road Under Bridge in Level Cross No.403 in between Virudhunagar and Thulukkapatti Railway Station.
3. W.P(MD)No.2190 of 2012 has been filed seeking a Writ of Certiorari to call for the records relating to the Notification in Na.Ka.No.D1/5487/2010 dated 30.12.2011 issued by the fifth respondent herein and quash the same as illegal and unconstitutional insofar as the petitioner is concerned.
4. W.P(MD)No.2191 of 2012 has been filed seeking a Writ of Certiorari to call for the records relating to the Notification in Na.Ka.No.D1/5487/2010 dated 30.12.2011 issued by the fifth respondent herein and quash the same as illegal and unconstitutional insofar as the petitioner is concerned.
5. W.P(MD)No.2192 of 2012 has been filed seeking a Writ of Certiorari to call for the records relating to the Notification in Na.Ka.No.D1/5487/2010 dated 30.12.2011 issued by the fifth respondent herein and quash the same as illegal and unconstitutional insofar as the petitioner is concerned.
6. W.P(MD)No.2193 of 2012 has been filed seeking a Writ of Certiorari to call for the records relating to the Notification in Na.Ka.No.D1/5487/2010 dated 30.12.2011 issued by the fifth respondent herein and quash the same as illegal and unconstitutional insofar as the petitioner is concerned.
7. W.P(MD)No.2194 of 2012 has been filed seeking a Writ of Certiorari to call for the records relating to the Notification in Na.Ka.No.D1/5487/2010 dated 30.12.2011 issued by the fifth respondent herein and quash the same as illegal and unconstitutional insofar as the petitioner is concerned.
8. W.P(MD)No.2195 of 2012 has been filed seeking a Writ of Certiorari to call for the records relating to the Notification in Na.Ka.No.D1/5487/2010 dated 30.12.2011 issued by the fifth respondent herein and quash the same as illegal and unconstitutional insofar as the petitioner is concerned.
9. W.P(MD)No.2326 of 2012 has been filed seeking a Writ of Certiorarified Mandamus to call for the records of the fourth respondent to the Notification dated 30.12.2011 in Na.Ka.D1/5487/2010 in respect of Serial No.5 regarding R.S.No.78/5, Ramamurthy Road, Virudhunagar, published in 'Dinatanti' News Daily in issue dated 01.01.2012 and quash the same and further direct the respondents to proceed with the construction of a Road Under Bridge at LC 403, Ramamoorthy Road, Virudhunagar, instead of a Road Over Bridge.
10. W.P(MD)No.2327 of 2012 has been filed seeking a Writ of Certiorarified Mandamus to call for the records of the fourth respondent pertaining to the Notification dated 30.12.2011 in Na.Ka.D1/5487/2010 pertaining to the Serial No.7 regarding R.S.No.78/7, Ramamurthy Road, Virudhunagar, published in 'Dinatanthi' News Daily in issue dated 01.01.2012 and quash the same and further direct the respondents to proceed with the construction of a Road Under Bridge at LC 403, Ramamoorthy Road, Virudhunagar, instead of a Road Over Bridge.
11. W.P(MD)No.2328 of 2012 has been filed seeking a Writ of Certiorarified Mandamus to call for the records of the first respondent pertaining to G.O.No.236 Highways and Minor Ports (HQ-2) Department, dated 03.10.2008, pertaining to the Annexure 1, Entry No.14, Virudhunagar District, LC 403 at Ramamoorthy Road, Virudhunagar and quash the same pertaining to the Road Over Bridge and further direct the respondents to proceed with the construction of a Road Under Bridge at LC 403, Ramamoorthy Road, Virudhunagar.
12. W.P(MD)No.2329 of 2012 has been filed seeking a Writ of Mandamus to direct the respondents not to implement the Road Over Bridge in Serial No.14, Annexure 1, at LC 403, Ramamoorthy Road, Virudhunagar, vide G.O.No.236, Highways and Minor Ports (HQ-2) Department, dated 03.10.2008.
13. W.P(MD)No.12639 of 2012 has been filed seeking a Writ of Certiorari to call for the records relating to the Notification in Na.Ka.No.D1/5487/2010 dated 30.12.2011 issued by the fifth respondent and the consequential personal notice issued to the petitioner's father dated 02.01.2012 in Na.Ka.No.D1/5487/2010 and quash the same insofar as the petitioner is concerned.
14. W.P(MD)No.475 of 2013 has been filed seeking a writ of Certiorari to call for the records relating to the impugned notification of the second respondent vide Tender Notification No.20/2012-2013/D1 dated 18.12.2012 published in Makkal Kural Tamil Daily dated 20.12.2012 and quash the same as illegal.
15. W.P(MD)No.1441 of 2013 has been filed seeking a writ of Certiorari to call for the records relating to the impugned notification of the second respondent vide Tender Notification No.20/2012-2013/D1 dated 18.12.2012 published in Indian Express Daily dated 20.12.2012 and quash the same as illegal.
16. Since the issue involved in these writ petitions, is one and the same, all the writ petitions are taken up together for hearing and decided by this common order.
FACTS:
17. Brief facts leading to the filing of these writ petitions, would run thus:
17.1. The core issue involved in this batch of writ petitions, is of the construction of a Road Over Bridge (hereinafter referred to as 'ROB') or Road Under Bridge (hereinafter referred to as ?RUB?) in lieu of Existing LC.No.403 at Railway Km. 538/500 - 600 between Virudhunagar and Thulukkapatti Railway Stations (Virudhunagar Town).
17.2. The proposed site for the construction of ROB in lieu of existing LC 403 at Railway KM 538/500-600 is located near Virudhunagar Railway Junction. The western side (Virudhunagar side) of the proposed ROB lies in Ramamoorthy Road which is being maintained by Virudhunagar Municipality. The eastern side (Aruppukkottai side of ROB also lies in Ramamoorthy Road, which is other district road (ODR) maintained by Virudhunagar Highways Construction and Maintenance Division.
17.3. The petitioners herein are the land owners, whose lands are sought to be acquired for construction of the said ROB and in this batch of writ petitions?, the challenge is made to the Government Orders/Notifications, as stated below:
Sl.
No. Writ Petition Impugned Order(s)/Notification & Date 1 W.P(MD)No.2129/12 G.O.Ms.No.236 Highways and Minor Ports (HQ 2) Department, dated 03.10.2008; G.O.Ms.No.78 Highways and Minor Ports (HF 2) Department, dated 22.06.2011 and Na.Ka.D1/5487/2010, dated 30.12.2011.2 W.P(MD)No.2190/12 3 W.P(MD)No.2191/12 4 W.P(MD)No.2192/12 5 W.P(MD)No.2193/12 6 W.P(MD)No.2194/12 7 W.P(MD)No.2195/12
Notification in Na.Ka.No.D1/5487/2010 dated 30.12.2011 8 W.P(MD)No.2326/12 9 W.P(MD)No.2327/12 Notification dated 30.12.2011 in Na.Ka.D1/5487/2010 10 W.P(MD)No.2328/12 G.O.No.236 Highways and Minor Ports (HQ-2) Department, dated 03.10.2008.11 W.P(MD)No.2329/12
G.O.No.236, Highways and Minor Ports (HQ-2) Department, dated 03.10.2008.12 W.P(MD)No.12639/12
Na.Ka.No.D1/5487/2010 dated 30.12.2011 and the consequential personal notice dated 02.01.2012 in Na.Ka.No.D1/5487/2010 13 W.P(MD)No.475/13 Tender Notification No.20/2012-2013/D1 dated 18.12.2012 published in Makkal Kural Tamil Daily dated 20.12.2012.14 W.P(MD)No.1441/13
Tender Notification No.20/2012-2013/D1 dated 18.12.2012 published in Indian Express Daily dated 20.12.2012.
17.4. The Government has issued G.O.Ms.No.236, Highways and Minor Ports (HQ 2) Department, dated 03.10.2008, for the construction of the above said ROB. In the schedule appended to the said Government Order, the relevant portion reads as follows:
t.
vz;.
gzpapd; bgah;
eph;thf xg;g[jy; kjpg;gPl;Lj; bjhif (U:/ nfhoapy;) 14 tpUJefh; khtl;lk;
,uapy;nt fp.kP.538/500-600 y; cs;s ,uapy;nt flt[ vz;.403 f;F khw;whf tpUJefh; kw;Wk; JYf;fg;gl;o ,uapy; epiya';fSf;F ,ilna rhiy nkk;ghyk; mikj;jy;. (tpUJefh; efuk;) 20.53 17.5. In G.O.Ms.No.78, Highways and Minor Ports (HF-1) Department, dated 22.06.2011, the powers of the Government under Section 15(2) of the Tamil Nadu Highways Act, 2001, was delegated to the District Revenue Officer of the District concerned.
17.6. In ROC.No.D1/5487/2010, dated 30.12.2011, a public notice under Section 15(2) of the Act, has been issued stating that the lands specified therein are required for laying ROB in lieu of LC No.403 situated between Virudhunagar and Thulukkapatti Railway Stations.
17.7. Tender Notification No.20/2012-2013/D1 dated 18.12.2012 published in Makkal Kural Tamil Daily dated 20.12.2012, came to be issued for construction of the above said Road Over Bridge.
99999 17.8. The Divisional Engineer (H), Projects, Tirunelveli, has addressed a letter to the Superintending Engineer (H), Projects, Madurai, dated 13.04.2009, wherein it is stated as follows:
"Letter No.L.C.403/2009/DO/ Dated 13.04.2009 Sir, Sub: Construction of Road over Bridge in lieu of Existing LC No.403 at Railway Km 538/500 - 600 between Virudhu Nagar and Thulukkapatti Railway Stations (Virudhu Nagar Town) - Now ROB to be changed in to RUB - Regarding.
Ref: G.O.Ms.No.236 Highways and minor ports (HQ-2) department dated 03.10.2008.
_______ I submit that, In the above reference cited, the Government has sanctioned one ROB at LC 403 in Virudhu Nagar Town.
Already one ROB was constructed in the year 2004 at LC 406 and that ROB was opened to traffic in the year 2005.
Now in the G.O.Ms.No.131 Highways (HQ2) department Dated 18.08.2006 one limited use subway was sanctioned in the Virudhu Nagar Town and the General alignment drawing was awaited from the Railways.
During the Discussion with the Honourable Minister for Highways and minor ports, back ward class Minister and Chief Engineer (H) Projects on 24.02.2009 at Chennai, a decision was taken by them. They told me that RUB was enough instead of ROB because heavy land acquisition will involved in the ROB.
As per the instructions of the Chief Engineer, the RUB proposal was submitted and GAD was already submitted.
Necessary Rough cost proposal is also submitted.
I request that the Superintending Engineer may kindly get approval the GAD from Railways through the Chief Engineer, Projects."
(emphasis supplied.) 17.9. Consequent to the same, the Superintending Engineer (H), Madurai, addressed a letter dated 11.06.2009, to the Chief Engineer, Projects, Chennai, wherein the proposal for the construction of Road Under Bridge (hereinafter referred to as 'RUB') was made thus:
"..... Mdhy; nkw;fz;l gFjp kpFe;j fl;ol beUf;fo cs;s gFjp vd;gjhYk; efh; vy;iyf;Fs; Vw;fdnt fl;lg;gl;Ls;s rhiy nkk;ghyk; (flt[ vz; 406 y;) kw;Wk; fl;lg;glt[s;s tiuaWf;fg;gl;l Ru';fg;ghij (flt[ vz; (406 B) ,Ug;gjhYk;. nkk;ghyk; fl;Ltjw;F gjpy;. rhiy fPH;ghyk; fl;Ltjw;F jw;nghJ cj;njrpf;fg;gl;L mjw;Fhpa bgah; khw;w gpnuuiz fUj;JUt[k; njhuha kjpg;gPLk; jahhpf;fg;gl;L nky; eltof;iff;fhf mDg;gg;gLfpwJ."
(emphasis added.) 17.10. On 08.10.2009, the Divisional Engineer (Project), Highways, wrote a letter to the Commissioner of Virudhunagar Municipality, seeking to pass a resolution for construction of the RUB. Thereafter, on several occasions, similar communications were made to the Municipality for such a resolution being passed.
17.11. The Divisional Engineer, NABARD and Rural Roads, Paramakudi, has also addressed a letter to the Commissioner of Virudhunagar District, seeking a resolution to be passed for the construction of the RUB at LC 403.
17.12. Thereafter, the Joint Secretary to the Government, by letter dated 14.07.2010, made a request to the Director of Municipal Administration, Chennai, to instruct the Commissioner of Virudhunagar Municipality, to take necessary action to pass resolution regarding the construction of RUB.
17.13. Meanwhile, the District Collector, Virudhunagar District, addressed a letter dated 23.07.2010, to the Commissioner of Virudhunagar Municipality and sought for passing a resolution for the reasons that the construction of the bridge in LC 403 is an essential one and due to insufficient width of the road, RUB could be constructed and also administrative sanction for Rs.20.53 Crores has been granted.
17.14. In such circumstances, the District Collector, Virudhunagar District, by communication dated 11.04.2011, directed the Revenue Divisional Officer, Aruppukkottai, to send the proposals under Section 15(2) of the Tamil Nadu Highways Act, 2001, so as to enable him to send a report to the Principal Secretary and Commissioner of Land Administration and to the Government. Thereafter, the Revenue Divisional Officer, Aruppukkottai, through his proceedings dated 27.04.2011, once again sought for a resolution.
17.15. Again, on 10.05.2011, the District Collector, Virudhunagar District, wrote a letter to the Commissioner, Virudhunagar Municipality, wherein it is stated as follows:
"Roc.D1/5487/10 dated : 10.05.11 Sir, Please refer this office Lr.No.D1/5487/10 dated 27.01.11 and reminders which remains unanswered at your end. The matter relates to construction of Railway over bridge at Railway KM 538/500-600 in lieu of existing LC No.403 between Virudhunagar and Thulukapatti Railway stations (Virudhunagar Town). As the matter has been listed out by the Principal Secretary and Commissioner of Land Administration, Chennai - 5 in their long pending. Ensure that your report along with resolution reach this office as well as the Revenue Divisional Officer, Aruppukkottai in a week's time, failing which the matter will be taken up with Government through your Head of the Department as the Principal Secretary and Commissioner of Land Administration, Chennai 5 is repeatedly addressing this office. Please treat this as urgent."
(emphasis supplied.) 17.16. G.O.Ms.No.78 Highways and Minor Ports (HF 2) Department, dated 22.06.2011, came to be passed, by delegating the powers of the Government under Section 15(2) of the Tamil Nadu Highways Act, 2001, to the District Revenue Officer of the District concerned. Accordingly, the District Revenue Officer cum Land Acquisition Officer, Virudhunagar, has issued the impugned notification dated 30.12.2011, which is under challenge in most of the writ petitions.
17.17. Denying the allegations made by the petitioners, the second respondent filed the counter affidavit on behalf of the State, in W.P(MD)No.2129 of 2012, stating that originally, the administrative sanction was given by the Government for the construction of a Road Over Bridge in lieu of the existing Level Crossing No.403 at Ramamoorthy Road, Virudhunagar Town, between Virudhunagar and Thulukkapatty Railway Stations, at an estimated cost of Rs.20.53 Crores, by G.O.Ms.No.236, dated 03.10.2008. Pursuant to the same, a public notice was issued by the District Revenue Officer, Virudhunagar, under Section 15(2) of the Tamil Nadu Highways Act, 2001, for the acquisition of the lands for construction of a Road Over Bridge and the said notification is under challenge in this writ petition. It is also contended that the decision had been taken to construct the Road Over Bridge, after considering the feasibility and other future requirements of that area. Further, it is stated that the change in nomenclature, viz, from Road Over Bridge to Road Under Bridge, was not based on any feasibility report and the only reason is that the land acquisition would be costlier for the Road Over Bridge. It is categorically stated that no High Level Committee was constituted by the Government to look into the issue of constructing a Road Under Bridge instead of a Road Over Bridge and that the total cost for construction of a Road Under Bridge is more than that of a Road Over Bridge. Also, it is the stand of the Government that the Road Over Bridge is more beneficial to the public. Accordingly, the second respondent prayed for the dismissal of the writ petition in W.P(MD)No.2129 of 2012.
18. In W.P(MD)No.2129 of 2012, the petitioners are represented by Mr.Veera Kathiravan, learned Counsel on record and the 10th respondent is represented by Mr.Ajmal Khan, Learned Senior Advocate. In W.P(MD)Nos.2190 to 2195 of 2012, the petitioners are represented by Mr.R.Viduthalai, Learned Senior Counsel for Mr.K.M.Vijayakumar, learned Counsel on record. In W.P(MD)Nos.2326 to 2329 of 2012, the petitioners are represented by Mr.N.S.Manoharan, learned Counsel for Mr.P.Radhakrishnan, learned Counsel for record. In W.P(MD)No.12639 of 2012, the petitioners are represented by Mr.R.Vijayakumar, learned Counsel on record. In W.P(MD)No.475 of 2013, the petitioners are represented by Mr.R.Viduthalai, learned Senior Counsel for Mr.Veera Kathiravan, learned Counsel on record. In W.P(MD)No.1441 of 2013, the petitioner is represented by Mr.N.S.Manoharan, learned Counsel appearing for the petitioner.
19. The State is represented by Mr.K.Chellapandian, learned Additional Advocate General, assisted by Mr.R.Karthikeyan, learned Additional Government Pleader and Mr.Aayiram K.Selvakumar, learned Government Advocate. The Railways is represented by Mr.S.Manohar, learned Standing Counsel. Virudhunagar Municipality is represented by Mr.N.Dilip Kumar, learned Counsel on record. In M.P(MD)No.1 of 2014 in W.P(MD)No.2129 of 2012, Mr.S.Masilamani, appeared in person. In M.P(MD)Nos.1 and 1 of 2014 in W.P(MD)Nos.2190 to 2195 of 2012 and 475 of 2013, the petitioner is represented by Mr.M.Ashokkumar, learned Counsel on record.
CONTENTIONS:
W.P(MD)Nos.2190 to 2195 of 2012:
20. Mr.R.Viduthalai, learned Senior Counsel appearing for the petitioners in W.P(MD)Nos.2190 to 2195 of 2012, focussed his arguments, mainly on the following issues:
(i) Repugnancy of the State Act with the Central Act;
(ii) Competency of District Revenue Officer to issue the impugned notification;
(iii) Failure to follow the provisions of the State Act;
(iv) Violation of Article 14 of the Constitution;
(v) Arbitrariness;
(vi) Construction of a Road Over Bridge, not a policy decision; and
(vii) Writ petitions, not premature.
Repugnancy:
21. Mr.R.Viduthalai, learned Senior Counsel, commenced his arguments stating that the provisions contained in Chapter IV of the State Act, viz., Sections 15 to 25 of the Act, are inconsistent and repugnant to the provisions of the Central Act, as both the Acts are traceable to Entry 42 in List III, concurrent list of Schedule 7 of the Constitution of India and hence, the Central Act would prevail over the State Act and that in case of repugnancy or inconsistency between them, the State Act would be void and inoperative to the extent of repugnancy in view of Article 254 of the Constitution of India, till the State Act is properly amended and the assent of the President of India is obtained. It is further contended that the reference made in the State Act to the erstwhile Central Act, is only by way of a referential legislation and not by doctrine of incorporation and therefore, in the absence of necessary amendments to the State Act, it would be void and inoperative. Moreover, the State amendment seeking to incorporate Section 105-A in the Central Act, would exhibit the repugnancy between both the Acts. Accordingly, the Senior Advocate concluded his first limb of arguments, pointing out that the impugned notification is repugnant, void and inoperative, because of the Central Act, in the light of Article 254(1) of the Constitution of India.
22. Regarding the Doctrine of Repugnancy, he relied on the decision of the Honourable Apex Court in State of Kerala v. Mar Appraem Kuri Co. Ltd., reported in (2012) 7 Supreme Court Cases 106. The relevant paragraphs in the said judgment are extracted hereunder:
"47. The question of repugnancy between parliamentary legislation and State legislation arises in two ways. First, where the legislations, though enacted with respect to matters in their allotted spheres, overlap and conflict. Second, where the two legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, the parliamentary legislation will predominate, in the first, by virtue of non obstante clause in Article 246(1); in the second, by reason of Article 254(1).
48. Article 254(2) deals with a situation where the State legislation having been reserved and having obtained the President?s assent, prevails in that State; this again is subject to the proviso that Parliament can again bring a legislation to override even such State legislation.
49. In clause (1) of Article 254 the significant words used are ?provision of a law made by the legislature of a State?, ?any provision of a law made by Parliament which Parliament is competent to enact?, ?the law made by Parliament, whether passed before or after the law made by the legislature of such State?, and ?the law made by the legislature of the State shall, to the extent of repugnancy, be void?. Again, clause (2) of Article 254 speaks of ?a law made by the legislature of a State?, ?an earlier law made by Parliament?, and ?the law so made by the legislature of such State?. Thus, it is noticeable that throughout Article 254 the emphasis is on law-making by the respective legislatures.
***** ***** ***** ***** ***** *****
61. The entire above discussion on Articles 245, 246, 250, 251 is only to indicate that the word ?made? has to be read in the context of the law- making process and, if so read, it is clear that to test repugnancy one has to go by the making of law and not by its commencement.
Case law
62. In T. Barai v. Henry Ah Hoe [(1983) 1 SCC 177 : 1983 SCC (Cri) 143], this Court has laid down the following principles on repugnancy: (SCC pp. 186-87, para 15) ?15. There is no doubt or difficulty as to the law applicable. Article 254 of the Constitution makes provision firstly, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict. Article 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a concurrent subject is ?repugnant? to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the general rule laid down in clause (1), clause (2) engrafts an exception viz. that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will prevail in that State and override the provisions of the Central Act in their applicability to that State only. The predominance of the State law may however be taken away if Parliament legislates under the proviso to clause (2). The proviso to Article 254(2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the President?s assent. Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the ?same matter?. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together e.g. where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State law under Article 254(1).? (emphasis supplied.)
63. In I.T.C. Ltd. v. State of Karnataka [1985 Supp SCC 476], this Court vide para 18 stated as under: (SCC p. 496) ?18. Thus, in my opinion, the five principles have to be read and construed together and not in isolation?where however, the Central and the State legislation cover the same field then the Central legislation would prevail. It is also well settled that where two Acts, one passed by Parliament and the other by a State Legislature, collide and there is no question of harmonising them, then the Central legislation must prevail.?
(emphasis supplied)
64. In M. Karunanidhi v. Union of India [(1979) 3 SCC 431 : 1979 SCC (Cri) 691], the test for determining repugnancy has been laid down by the Supreme Court as under: (SCC pp. 436-38, 444 & 448-49, paras 8, 24-25 & 35) ?8. It would be seen that so far as clause (1) of Article 254 is concerned it clearly lays down that where there is a direct collision between a provision of a law made by the State and that made by Parliament with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the State law would be void to the extent of the repugnancy. This naturally means that where both the State Legislature and Parliament occupy the field contemplated by the Concurrent List then the Act passed by Parliament being prior in point of time will prevail and consequently the State Act will have to yield to the Central Act.
In fact, the scheme of the Constitution is a scientific and equitable distribution of legislative powers between Parliament and the State Legislatures. First, regarding the matters contained in List I i.e. the Union List to the Seventh Schedule, Parliament alone is empowered to legislate and the State Legislatures have no authority to make any law in respect of the Entries contained in List I. Secondly, so far as the Concurrent List is concerned, both Parliament and the State Legislatures are entitled to legislate in regard to any of the Entries appearing therein, but that is subject to the condition laid down by Article 254(1) discussed above. Thirdly, so far as the matters in List II i.e. the State List are concerned, the State Legislatures alone are competent to legislate on them and only under certain conditions Parliament can do so. It is, therefore, obvious that in such matters repugnancy may result from the following circumstances:
(1) Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.
(2) Where however a law passed by the State Legislature comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254.
(3) Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.
(4) Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to that State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254.
So far as the present State Act is concerned we are called upon to consider the various shades of the constitutional validity of the same under Article 254(2) of the Constitution.
* * *
24. It is well settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied:
(1) That there is a clear and direct inconsistency between the Central Act and the State Act.
(2) That such an inconsistency is absolutely irreconcilable. (3) That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.
25. In Colin Howard?s Australian Federal Constitutional Law, 2nd Edn., the author while describing the nature of inconsistency between the two enactments observed as follows:
?An obvious inconsistency arises when the two enactments produce different legal results when applied to the same facts.?
* * *
35. On a careful consideration, therefore, of the authorities referred to above, the following propositions emerge:
(1) That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field. (2) That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.
(3) That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results. (4) That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.?
(emphasis supplied)"
Relying upon the above judgments, the learned Senior Advocate painstakingly contended that the provisions of the state are repugnant with the Land Acquisition Act, 1894. He further contended that whenever there is repugnancy, the central act would prevail and the provisions of the state act has to be ignored in so far the repugnant portions are concerned. Further, in view of the repeal of the old central acquisition Act and the advent of the new act, the entire proceedings have to be started afresh by following the procedures prescribed by law . He further contended that in view of the repugnancy with the Central Enactment, the notification issued under the State Enactment would not have the legs to stand and the same would have to be struck down.
Competency:
23. The next contention put forth by the learned Senior Counsel, is that the impugned notification was issued by an incompetent authority, viz., the District Revenue Officer, and that the District Revenue Officer is not at all the authority competent to issue such notification, in view of the provisions of Section 15(2) of the State Act. According to him, though the power had been delegated to the District Revenue Officer, it could not be so, for, the Rules framed under the State Act would be very clear in specifying the authorities who are competent enough to exercise the powers conferred under the State Act and that the statutory rules would prevail over the administrative notifications or executive instructions and hence, the delegation made by way of an administrative notification would definitely be ultra vires Rule 5 of the Tamil Nadu Highways Rules, 2003. He also referred to Section 56 of the State Act, which enables the Government, by notification, to authorise any authority or officer to exercise any of the powers vested in them by the Act, other than the powers conferred by Sections 55, 65 and 66 and to withdraw such authorisation. He further contended that Rules 5 and 6 of the Tamil Nadu Highways Rules, 2003, would specify that the Government or the Collector or the Special Deputy Collector (Land Acquisition), Tamil Nadu Urban Development Project III, are the competent authorities to acquire the land.
24. According to the learned Senior Counsel, as per Section 15(2) of the Act, the District Collector is the Acquisition Authority and the Divisional Engineer is engaged for the technical assistance and in the present case, there is no subjective satisfaction of the District Revenue Officer, who issued the impugned notification and it does not reflect the satisfaction of the Government also and hence, the same would have to fall to the ground. Therefore, he concluded that the impugned notification had been issued by an incompetent authority, viz., District Revenue Officer and on that score also, the same could be quashed.
Failure in adhering to mandatory procedures:
25. Pointing out the effects of non-compliance of the provisions mandated as per the State Act, the learned Senior Counsel argued that once the mandatory and statutory provisions of the State Act were given up, the impugned notification could not be stated to be valid any more and in the case on hand, it is ex facie clear that the relevant provisions, viz., Sections 3, 5 and 8 of the State Act, were given a go-by, which has vitiated the impugned notification. Drawing the attention of this Court to Chapter IV of the State Act, he argued that prima facie satisfaction is required as per Section 15(1) of the State Act for the purpose of Highways or Bridge in the Highways and that notice under Section 15(2) of the Act shall be issued as to why the land should not be acquired for the said purpose and that after the conclusion of enquiry and the submission of the report, the Government may consider the order passed under Section 15(1) of the State Act, in terms of Section 15(3) of the Act, which is akin to declaration under Section 6 of the Land Acquisition Act. He pointed out that Section 8 of the State Act should precede the enquiry under Section 16 or notification under Section 15 and regarding failure to comply with the requirements of Section 8 of the Act, the petitioners relied on the decision of this Court in CeeDeeYes Standard Towers (P) Ltd. v. The Collector of Chennai reported in 2013 (1) CWC 425, wherein this Court struck down the notification under section 15 as the procedures were not followed.
Violative of Article 14 of the Constitution:
26. The learned Senior Counsel portrayed the impugned notification as that of one in violation to Article 14 of the Constitution of India, by way of a comparative picture as to the effects that would be caused, between the Road Over Bridge and the Road Under Bridge. The learned Senior Counsel pointed out that though the closure of the railway level crossings would be contended to be a policy decision of the Government, the decision either to construct a Road Over Bridge or a Road Under Bridge, is not a policy decision, since the such decision would follow the technical feasibility, financial viability, comparative hardship, public interest, among other relevant factors.
27. The learned Senior Counsel further contended that the administrative sanction was granted for the construction of Road Over Bridge in LC 403, by the Government on 03.10.2008 in G.O.Ms.No.236, Highways and Minor Ports (HQ 2) Department, dated 03.10.2008 and subsequently, on 24.02.2009, there was a tripartite meeting convened by the Committee of Ministers consisting the Minister for Highways and Minor Ports and the Minister for Backward Class and the Chief Engineer (H), Projects, whereby they discussed about the feasibility of the construction of Road Over Bridge and decided that Road Under Bridge must be constructed, consequent to which, steps had been taken during April 2011 for construction of Road Under Bridge, however, during May 2011, they had again reverted to Road Over Bridge, in an arbitrary manner, without any basis. Again, he contended that the administrative sanction granted by the impugned Government Order, would have no legal sanctity and it is only a prima facie proposal for construction of a Road Over Bridge, subject to compliance of the relevant provisions of the State Act in stricto sensu. While contradicting the stand of the Government that since the administrative sanction is given only to construct a Road Over Bridge, it could not be modified into a Road Under Bridge, the learned Senior Counsel pointed out that an administrative sanction was given for construction of a Road Over Bridge in Kovilpatti, but, in the absence of any modification, a Road Under Bridge is nearing completion. As such, he concluded that pursuant to the arbitrary exercise of power, the impugned notification has to be struck down.
Arbitrariness (Malice in law):
28. Again, the learned Senior Counsel submitted that the proposal for construction of a Road Over Bridge, is purely vindictive in nature, so as to damage the properties of a former Minister, than that of the public interest.
He added that when the parameters are all in favour of construction of a Road Under Bridge, the proposal for construction of a Road Over Bridge, would be in exercise of arbitrariness and that the impugned notification did not disclose any measurements about the acquisition of the lands and therefore, he argued that the impugned notification under Section 15(2) of the Act, is arbitrary.
Judicial Review over policy decision:
29. The learned Senior Counsel also emphasised the point that the decision to close down all the level crossings, is alone the policy decision and not the methods by which they have to be closed down and that even a policy decision could be subjected to judicial review, if it is established as arbitrary.
Writ Petitions - Not premature:
30. Though it is the stand of the Government that the writ petitions are premature, according to the learned Senior Counsel it is not so, for the reason that the condition precedents embodied under the State Act, had been deliberately violated at the time of issuance of the impugned notification.
Moreover, the incompetency of the authority who issued the impugned notification, would also entitle the maintainability of the writ petitions. Ultimately, the learned Senior Counsel prayed for allowing the writ petitions.
W.P(MD)No.475 of 2013:
31. Insofar as W.P(MD)No.475 of 2013 is concerned, Mr.R.Viduthalai, learned Senior Counsel appearing for the petitioners, also submitted that after commencement of the Central Act, the State Act would be repugnant to the former and that the State Government had introduced a Bill to amend the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, in its application to the State of Tamil Nadu and hence, the tender notification is liable to be quashed.
Therefore, he prayed for allowing the writ petition.
32. In support of his above submissions, the learned Senior Counsel appearing for the petitioners has placed reliance on the following decisions:
(i) DDA v. UEE Electricals Engg. (P) Ltd., reported in (2004) 11 Supreme Court Cases 213. Paragraphs 11 to 14 would read as under:
"11. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is "illegality" the second "irrationality", and the third "procedural impropriety". These principles were highlighted by Lord Diplock in Council of Civil Unions v. Minister for the Civil Service, [1984] 3 A1I.ER. 935, (commonly known as CCSU Case).
12. Courts are slow to interfere in matters relating to administrative functions unless decision is tainted by any vulnerability such as, lack of fairness in procedure, illegality and irrationality. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.
13. The famous case Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [(1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] (KB at p. 229: All ER p. 682) commonly known as 'The Wednesbury's case" is treated as the landmark so far as laying down various basic principles relating to judicial review of administrative or statutory direction.
14. The law is settled that in considering challenge to administrative decisions courts will not interfere as if they are sitting in appeal over the decision."
(ii) State of T.N. v. K.Shyam Sunder reported in (2011) 8 Supreme Court Cases 737. Paragraphs 31, 32, 35 and 45 are extracted hereunder:
?31. The Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing.
"36. ... the principles of governance have to be tested on the touchstone of justice, equity and fair play and if a decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate". (Vide Onkar Lal Bajaj v. Union of India [(2003) 2 SCC 673 : AIR 2003 SC 2562])
32. In State of Karnataka v. All India Manufacturers Organisation, [(2006) 4 SCC 683 : AIR 2006 SC 1846], this Court examined under what circumstances the government should revoke a decision taken by an earlier Government. The Court held that an instrumentality of the State cannot have a case to plead contrary from that of the State and the policy in respect of a particular project adopted by the State Government should not be changed with the change of the government. The Court further held as under: (SCC p. 706, para 59) ?59. ... It is trite law that when one of the contracting parties is 'State' within the meaning of Article 12 of the Constitution, it does not cease to enjoy the character of "State" and, therefore, it is subjected to all the obligations that "State" has under the Constitution. When the State's acts of omission or commission are tainted with extreme arbitrariness and with mala fides, it is certainly subject to interference by the Constitutional Courts......"
(emphasis added) ***** ***** ***** *****
35. Thus, it is clear from the above that unless it is found that act done by the authority earlier in existence is either contrary to statutory provisions, is unreasonable, or is against public interest, the State should not change its stand merely because the other political party has come into power. Political agenda of an individual or a political party should not be subversive of rule of law.
***** ***** ***** *****
45. The legislature while delegating such powers has to specify that on certain data or facts being found and ascertained by an executive authority, the operation of the Act can be extended to certain areas or may be brought into force on such determination which is described as conditional legislation. While doing so, the legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purpose and object of the Act. Where the legislative policy is enunciated with sufficient clearness or a standard is laid down, the courts should not interfere. What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on consideration of the provisions of the particular Act with which the Court has to deal including its preamble. (See Delhi Laws Act, In re [AIR 1951 SC 332], MCD v. Birla Cotton Spg. and Wvg. Mills [AIR 1968 SC 1232])?
(iii) Girnar Traders (3) v. State of Maharashtra reported in (2011) 3 SCC 1. The relevant paragraphs are as follows:
"89. With the development of law, the legislature has adopted the common practice of referring to the provisions of the existing statute while enacting new laws. Reference to an earlier law in the later law could be a simple reference of provisions of earlier statute or a specific reference where the earlier law is made an integral part of the new law, i.e., by incorporation. In the case of legislation by reference, it is fictionally made a part of the later law. We have already noticed that all amendments to the former law, though made subsequent to the enactment of the later law, would ipso facto apply and one finds mention of this particular aspect in Section 8 of the General Clauses Act, 1897. In contrast to such simple reference, legal incidents of legislation by incorporation is that it becomes part of the existing law which implies bodily lifting provisions of one enactment and making them part of another and in such cases subsequent amendments in the incorporated Act could not be treated as part of the incorporating Act.
***** ***** ***** *****
121. These are the few examples and principles stated by this Court dealing with both the doctrines of legislation by incorporation as well as by reference. Normally, when it is by reference or citation, the amendment to the earlier law is accepted to be applicable to the later law while in the case of incorporation, the subsequent amendments to the earlier law are irrelevant for application to the subsequent law unless it falls in the exceptions stated by this Court in M.V. Narasimhan's case (1975) 2 SCC 377 :
1975 SCC (Cri) 589). It could well be said that even where there is legislation by reference, the Court needs to apply its mind as to what effect the subsequent amendments to the earlier law would have on the application of the later law. The objective of all these principles of interpretation and their application is to ensure that both the Acts operate in harmony and the object of the principal statute is not defeated by such incorporation. Courts have made attempts to clarify this distinction by reference to various established canons. But still there are certain grey areas which may require the court to consider other angles of interpretation. ***** ***** ***** *****
141. One of the pertinent principles that the Court should keep in mind while applying referential legislation as a tool of interpretative application is that such interpretation should not, in any way, defeat the object and essence of principal legislation. The likelihood of any interference with the scheme under the principal Act would tilt against accepting such an interpretation.
***** ***** ***** *****
148. Having perused and analyzed the various judgments cited at the Bar we are of the considered view that this rule is bound to have exceptions and it cannot be stated as an absolute proposition of law that wherever legislation by reference exists, subsequent amendments to the earlier law shall stand implanted into the later law without analyzing the impact of such incorporation on the object and effectuality of the later law. The later law being the principal law, its object, legislative intent and effective implementation shall always be of paramount consideration while determining the compatibility of the amended prior law with the later law as on relevant date.
149. It will be useful to apply the `test of intention' and `test of unworkability' with their respective contextual reference while determining the applicability of either of the doctrines and for that matter, even on the applicability of the amended law to the later law. Impact analysis on the workability of the respective legislation shall be a relevant consideration for resolving such an issue. There can be instances where the amended law, if applied and treated as incorporated in the principal legislation, may be apparently unadjustable to the scheme of that legislation. In that circumstance, it will be unfair to interpret the amended law as deemed to be incorporated, irrespective of its consequences on the implementation of the provisions of the principal Act.
150. It is emphasised that the object of the principal Act should not be permitted to be defeated on the basis of either of the doctrines above referred. Hence, there is need for carving out exceptions to the rule of legislation by reference as well. Examples where such reference would be impermissible are as follows :
a) Legislation by reference should not result in defeating the object and purpose of the later Act;
b) Where the amendments to the earlier law are read into the subsequent law as a result of legislation by reference, if the result is irresolvable conflict between their provisions or it results in destroying the essence and purpose of the principal Act (later law).
The above exceptions to the doctrine are not exhaustive but are merely indicative. The possibility of other exceptions to this doctrine cannot be ruled out as it is difficult for this Court to state all such exceptions with precision. Furthermore, defining such exceptions with exactitude will not even aid the ends of justice. We have already noticed that all the learned counsel appearing for the parties are ad idem that it would be necessary to carve out such exceptions to apply the doctrine appropriately, advantageously and objectively."
(iv) State of Kerala v. Mar Appraem Kuri Co. Ltd., reported in (2012) 7 Supreme Court Cases 106. Paragraphs 42, 43, 45 and 46 are reproduced hereunder:
"42. Further, Article 250 and Article 251 also use the word "make" and not "commencement". If one reads the Head Note to Article 250 it refers to power of the Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation. The word "made" also finds place in Article 250(2). In other words, the verb "make" or the verb "made" is equivalent to the expression "to legislate" Thus, making of the law is to legislate with respect to any matter in the State List if Proclamation of Emergency is in operation. The importance of this discussion is to show that the Constitution framers have deliberately used the word "made" or "make" in the above Articles.
43. Our Constitution gives supremacy to the Parliament in the matter of making of the laws or legislating with respect to matters delineated in the three Lists. The principle of supremacy of Parliament, the distribution of legislative powers, the principle of exhaustive enumeration of matters in the three Lists are all to be seen in the context of making of laws and not in the context of commencement of the laws.
***** ***** ***** *****
45. Clause (1) of Article 254 states that if a State law, relating to a concurrent subject is "repugnant" to a Union law, relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. Thus, Article 254(1) also gives supremacy to the law made by Parliament, which Parliament is competent to enact. In case of repugnancy, the State Legislation would be void only to the extent of repugnancy. If there is no repugnancy between the two laws, there is no question of application of Article 254(1) and both the Acts would prevail. Thus, Article 254 is attracted only when Legislations covering the same matter in List III made by the Centre and by the State operate on that subject; both of them (Parliament and the State Legislatures) being competent to enact laws with respect to the subject in List III.
46. In the present case, Schedule VII List III Entry 7 deals with the subject of "Contracts". It also covers special contracts. Chitties are special contracts. Thus, the Parliament and the State Legislatures are competent to enact a law with respect to such contracts. "
(v) Animal Welfare Board of India v. A.Nagaraja and others [Civil Appeal No.5387 of 2014, decided on 07.05.2014]. Paragraph 65 would run thus:
"65. We may now examine whether provisions of the TNRJ Act, which is a State Act, is repugnant to the PCA Act, which is a Central Act, since, both the Acts fall under Entry No. 17 in the Concurrent List. Repugnancy between the Parliamentary Legislation and State Legislation arises in two ways:
i) Where the legislations, though enacted with respect to the matters in their allotted sphere, overlap conflict and
ii) Where two legislations are with respect to the same matters in the concurrent list and there is a conflict. In both the situations, the Parliamentary legislation will predominate in the first by virtue of the non-
obstante clause in Article 246(1), and in the second by reason of Article 254(1) of the Constitution. The law on this point has been elaborately discussed by this Court in the case of Vijay Kumar Sharma v. State of Karnataka (1990) 2 SCC 562."
(vi) The Railway Employees' Co-operative Credit Society Limited v. The Joint Commissioner of Labour [W.A.No.314 of 2010, decided on 13.11.2013]. Paragraphs 17,18, 19 and 20 are reproduced hereunder:
"17. The next point that arises for consideration is as to whether the appellant Society is an industrial establishment coming within the meaning of Section 2(e) of the Standing Orders Act. The learned Judge has found that in pursuant to the introduction of sub-section (h) of Section 2 under the Payment of Wages Act, 1936, the appellant society is an industrial establishment within the meaning and definition of Section 2(e) of the Standing Orders Act, 1946. It is the contention of the learned Senior Counsel for the appellant that the amendment introduced in 1982 cannot be applied to the definition of 'industrial establishment' as found under the Industrial Employment (Standing Orders ) Act 1946 since it is a legislation by incorporation and not a legislation by reference. In support of his submission, the learned Senior Counsel relied on a Division Bench decision of the Gujarat High Court reported in 1995 (3) LLJ Suppl. 665 ( Valsad Jilla Sahakari Bank Ltd., Vs. D.K.Patel and Others) wherein the Division Bench has observed at paragraphs 7 and 8 as follows:-
"7. Relying on the principle of incorporation, looking to the aforesaid two decisions, it has to be held that if the meaning of a term is incorporated from an Act which has been subsequently repealed or has been subsequently amended, the position available as on the date of passing of the statute wherein the definition has been incorporated from another statute, will prevail and will continue to hold the field and any subsequent changes in the incorporated statute will not affect the position vis-a-vis the statute in which the definition is incorporated.
8. The position, therefore, to be found in the case before us is that when the said Act came to be enacted the meaning of the terms 'industrial establishment' was to be understood in accordance with the position available at that time, under the Payment of Wages Act, 1936. That clearly excluded the petitioner Bank and establishment of that type and as such the order of certifying authority is clearly without jurisdiction."
18. He further relied on the decision of the Apex Court reported in 2011 (3) SCC 1 ( Girnar Traders (3) Vs. State of Maharashtra and Others) to contend that the disputed legislation is only a legislation by incorporation and not a legislation by a reference. At paragraphs Nos. 87,88, 89 the Apex Court has held as follows:-
"87. However, since this aspect was argued by the learned counsel appearing for the parties at great length, we will proceed to discuss the merit or otherwise of this contention without prejudice to the above findings and as an alternative plea. These principles have been applied by the courts for a considerable period now. When there is general reference in the Act in question to some earlier Act but there is no specific mention of the provisions of the former Act, then it is clearly considered as legislation by reference. In the case of legislation by reference, the amending laws of the former Act would normally become applicable to the later Act; but, when the provisions of an Act are specifically referred and incorporated in the later statute, then those provisions alone are applicable and the amending provisions of the former Act would not become part of the later Act. This principle is generally called legislation by incorporation. General reference, ordinarily, will imply exclusion of specific reference and this is precisely the fine line of distinction between these two doctrines. Both are referential legislations, one merely by way of reference and the other by incorporation. It, normally, will depend on the language used in the later law and other relevant considerations. While the principle of legislation by incorporation has well defined exceptions, the law enunciated as of now provides for no exceptions to the principle of legislation by reference. Furthermore, despite strict application of doctrine of incorporation, it may still not operate in certain legislations and such legislation may fall within one of the stated exceptions.
88. In this regard, the judgment of this Court in the case of M.V. Narasimhan (1975 (2) SCC 377) can be usefully noticed where the Court after analyzing various judgments, summed up the exceptions to this rule as follows : (SCC p.385. para 15) "(a) where the subsequent Act and the previous Act are supplemental to each other;
(b) where the two Acts are in pari materia;
(c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and
(d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act."
89. With the development of law, the legislature has adopted the common practice of referring to the provisions of the existing statute while enacting new laws. Reference to an earlier law in the later law could be a simple reference of provisions of earlier statute or a specific reference where the earlier law is made an integral part of the new law, i.e., by incorporation. In the case of legislation by reference, it is fictionally made a part of the later law. We have already noticed that all amendments to the former law, though made subsequent to the enactment of the later law, would ipso facto apply and one finds mention of this particular aspect in Section 8 of the General Clauses Act, 1897. In contrast to such simple reference, legal incidents of legislation by incorporation is that it becomes part of the existing law which implies bodily lifting provisions of one enactment and making them part of another and in such cases subsequent amendments in the incorporated Act could not be treated as part of the incorporating Act."
19. He further relied on the decision of the Supreme Court reported in 2007 (4) SCC 685 (Bharat Co-operative Bank (Mumbai ) Ltd., Vs. Co-operative Bank Employees Union) wherein the Apex Court at paragraph No.15 has held as follows:-
"15. Before adverting to the said core issue, we may briefly notice the distinction between the two afore-mentioned concepts of statutory interpretation, viz., a mere reference or citation of one statute in another and incorporation by reference. Legislation by incorporation is a common legislative device where the legislature, for the sake of convenience of drafting incorporates provisions from an existing statute by reference to that statute instead of verbatim reproducing the provisions, which it desires to adopt in another statute. Once incorporation is made, the provision incorporated becomes an integral part of the statute in which it is transposed and thereafter there is no need to refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on the incorporating statute. On the contrary, in the case of a mere reference or citation, a modification, repeal or re-enactment of the statute, that is referred will also have effect on the statute in which it is referred. The effect of "incorporation by reference" was aptly stated by Lord Esher, M.R. in Wood's Estate, Ex parte Works and Buildings Commrs., In re (55 LJ Ch 488(CA) in the following words at page 615:" " If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all."
20. In the very same decision, the Apex Court at paragraph No.21 also observed that the distinction between incorporation by reference and adoption of provisions by mere reference or citation is not too easy to highlight and that it is matter of probe into legislative intention and/or taking an insight into the working of the enactment if one or the other view is adopted. Paragraph 21 is extracted hereunder:-
"21. However, the distinction between incorporation by reference and adoption of provisions by mere reference or citation is not too easy to highlight. The distinction is one of difference in degree and is often blurred. The fact that no clear-cut guidelines or distinguishing features have been spelt out to ascertain whether it belongs to one or the other category makes the task of identification difficult. The semantics associated with interpretation play their role to a limited extent. Ultimately, it is a matter of probe into legislative intention and/or taking an insight into the working of the enactment if one or the other view is adopted. Therefore, the kind of language used in the provision, the scheme and purpose of the Act assume significance in finding answer to the question. (See Collector of Customs vs. Nathella Sampathu Chetty & Anr.)(AIR 1962 SC 316).The doctrinaire approach to ascertain whether the legislation is by incorporation or reference is, on ultimate analysis, directed towards that end. (See:Maharashtra State Road Transport Corporation vs. State of Maharashtra & Ors. (2003 (4) SCC 200). Thus, the question for determination is to which category the present case belongs."
(vii) G.Ramasamy v. The District Collector, Villupuram and another reported in 2004-4-L.W. 207. Paragraphs 3, 7 and 8 are as follows:
"3. Several contentions have been raised. However, it is not necessary to deal with all those contentions as in my opinion, the writ petition is to be allowed and the impugned proceedings have to be quashed on the ground that the decision to acquire the land has been taken by the District Revenue Officer and not by the District Collector which is apparent from the orders produced in the typed set as well as from the file which was produced by the learned Mrs.D.Malarvizhi appearing on behalf of the Government.
***** ***** *****
7. The learned counsel for the respondents, however, relied upon the provisions containing in Section 16 of the Act, which is to the following effect:
"16. Delegation of functions The Government may, by notification in the Tamil Nadu Government Gazette, direct that any power conferred or any duty imposed on them by this Act except the power to make rules, shall, in such circumstances and under such conditions, if any, as may be specified in the Notification, be exercised or discharged also by the District Collector".
Explanation.---For the purpose of this section "District Collector"
shall include the District Revenue Officer.
8. The delegation contemplated in Section 16 relates to the delegation of any power or duty imposed on the Government and it does not contemplate delegation of any power or function of the Collector. The explanation indicates that for the purpose of this section (meaning thereby section 16) the expression Collector includes District Revenue Officer. The explanation does not provide that for the purpose of the entire Act, the expression Collector includes the District Revenue Officer."
Hence, the Learned Senior Counsel contended that the District Collector's power cannot be delegated to the District Revenue Officer and therefore, it has to be quashed. He further relied on the following decisions:-
(viii) Jainabi v. The State of Tamil Nadu reported in 2006 (5) CTC
163. Paragraphs 6 to 8, would run thus:
"6. However, as per sub-section (2) of Section 4, before a notification under sub-section (1) is published, the District Collector or any officer authorised by the District Collector in his behalf, shall call upon the owner or any other person to show cause why the land should not be acquired. By that Section, the District Collector is only empowered to delegate his power to any officer only for the purpose of showing cause to the owner or any other person who may be interested in such land to show cause as to the acquisition. Sub-section (3)(a) of Section 4 contemplates that where the District Collector himself has called upon the owner or other person to show cause under sub-section (2), he may pass orders as he may deem fit on the cause so shown. On the other hand, under sub-section (3)(b) of Section 4, where the District Collector had authorised any officer to call upon the owner or other person to show cause and the officer so authorised shall make a report containing his recommendations, and the District Collector, after considering such report, may pass such orders as he may deem fit. The satisfaction as to the very Harijan Welfare Scheme and the consequential decision to acquire the land are vested in the District Collector only in terms of Section 4(1) of the Act. The District Collector may authorise any of the officer to call for explanation and conduct enquiry from the owner or any other person aggrieved, and such authorised officer can only make his recommendations to the District Collector and after considering such recommendations, the District Collector has to again satisfy himself as to the acquisition. The issue of the notice under Rule 3(ii) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Rules, 1979 also contemplates that the District Collector, after passing orders under sub-sections (2) and (3) of Section 4, is satisfied that it is necessary to acquire the land issue notice in Form II to that effect and that such notice shall be published in the District Gazette. The issue of even a notice in Form II is in the name of the District Collector only.
7. From the above, this Court could draw no other inference except to find that when the legislature intended that the authority to exercise the power of issue of notice in Form II as well the notice under Section 4(1) shall be the District Collector only, the Government, in exercise of power under Section 16, cannot delegate such power to any other authority. That apart, none of the provisions of the Act even empowers the District Collector to authorise any officer to issue notice under Section 4(1), except an authorised officer for the purpose of holding enquiry under sub-section (2) of Section 4 of the Act.
8. On the above discussions, we hold that the District Collector is the only competent authority to exercise the power under Section 4(1) of the Act for issue of notification, and such power cannot be delegated to any other officer including the Additional Collector in whose name the notification has been issued. We also hold that the power under Section 16 can be invoked by the Government only in respect of the power conferred or any duty imposed on them and such power cannot be extended by delegating the power of the District Collector to issue the notification under Section 4(1) to the Additional Collector. As we have found merit in the first contention and, on such finding, the notification is liable to be quashed, we are not inclined to go into the next contention of the learned counsel for appellant relating to the failure on the part of the respondents to serve the proceedings of the Tahsildar. Accordingly, the Writ Appeal is allowed and the acquisition proceedings are quashed. No costs. Consequently, W.A.M.P.No.648 of 2004 is closed."
(ix) The Secretary to Government v. Josuva Jebakumar reported in 2010 (1) CWC 610. Paragraphs 9 and 14, are extracted thus:
"9. We have considered the rival submissions and perused the records carefully. In our considered opinion, though the object of the Government Order in question is laudable, the procedure adopted by the official appellants is wholly without jurisdiction. It is too well settled, on several occasions, by the Hon'ble Supreme Court as well as this Court that administrative/executive orders, administrative/executive circulars and guidelines cannot override the Service Rule issued by the Government in exercise of the power conferred under Article 309 of the Constitution of India. In the cases on hand, as per the Special Rules governing these posts, the appointment can be made only by means of direct recruitment. The said Rule does not speak of any reservation for any service candidate or any other qualification, like, experience. Indisputably, the Government Order impugned in the Writ Petitions has not been issued in exercise of power conferred under Article 309 of the Constitution of India, but instead, it is only an executive order and the same cannot override the Service Rules. When there is such a conflict between the Government Order and the Statutory Service Rules, there can be no hesitation to declare the said Government Order as null and void. Further, allotting a major chunk of vacancies exclusively for the service candidates so as to exclude the participation of the fresh candidates would amount to reservation, which is not permissible under the Constitution, as such reservation would violate Articles 14 and 16(2) of the Constitution of India. In our considered opinion, all the available vacancies should be kept open for all eligible candidates to compete, of course subject to the reservation, like reservation for SC/ST, MBC, BC etc., which have got the sanction of the Constitution. For all these reasons, we are of the considered view that the impugned Government Order is liable to be quashed. The learned Single Judge has rightly done so.
***** ***** ***** *****
14. It is submitted by the learned Special Government Pleader that the selection was sought to be made on the basis of interview. If that is the case, while conducting interview, for assessing merit, the department can evolve its own procedure and guidelines for allotting marks under the various heads. While doing so, the Government is at liberty to award marks for previous experience, as the same would be an added qualification for the candidates, who have been already working. Similarly, for these service candidates, the Government may relax the age qualification also. We would like to say that by adopting such a procedure of selection, which is fair, the meritorious candidates should alone be selected and appointed."
(x) Sarangapani, V. (deceased) v. Collector of Thanjavur reported in (2006) 1 M.L.J. 527. Paragraph 8 would run thus:
"8. On a reading of the above decision of the Division Bench of this Court and the Apex Court, it is clear that the responsibility is cast on the District Collector in exercise of his power to acquire the land under the provisions of Act 31 of 1978, diligently and consciously. The recording of satisfaction under Section 4(1) to acquire the land, comes into play only after considering and disposing of the objections. Therefore, when the statute prescribes certain procedures to be followed while acquiring the property of an individual, it is incumbent on the authority prescribed under the statute to strictly adhere to the procedures prescribed. The non- observance of the procedures prescribed under the Act and the Rules will clearly vitiate the whole proceedings. The authority invoking the power under a statute to acquire the property of the individual in exercise of the State's power of "eminent domain", is equally bound to follow the Rules and procedures prescribed under the statute before depriving the owner of his property. If the procedures as prescribed under the Act have not been followed by the authority concerned, the Court can take notice of such illegality or impropriety in the procedure and interfere by way of judicial review."
(xi) Raghbir Singh Sehrawat v. State of Haryana reported in (2012) 1 Supreme Court Cases 792. Paragraphs 41 to 44 are reproduced hereunder:
"41. Before concluding, we deem it necessary to observe that in recent past, various State Governments and their functionaries have adopted very casual approach in dealing with matters relating to the acquisition of land in general and the rural areas in particular and in a large number of cases, the notifications issued under Sections 4(1) and 6(1) with or without the aid of Section 17 and the consequential actions have been nullified by the Courts on the ground of violation of the mandatory procedure and the rules of natural justice. The disposal of cases filed by the landowners and others take some time and the resultant delay has great adverse impact on implementation of the projects of public importance. Of course, the delay in deciding such cases may not be of much significance when the State and its agencies want to confer benefit upon private parties by acquiring land in the name of public purpose.
42. It is difficult, if not impossible, to appreciate as to why the State and its instrumentalities resort to massive acquisition of land and that too without complying with the mandate of the statute. As noted by the National Commission on Farmers, the acquisition of agricultural land in the name of planned development or industrial growth would seriously affect the availability of food in future. After independence, the administrative apparatus of the State has not spent enough investment in the rural areas and those who have been doing agriculture have not been educated and empowered to adopt alternative sources of livelihood. If land of such persons is acquired, not only the current but the future generations are ruined and this is one of the reasons why the farmers who are deprived of their holdings commit suicide.
43. It also appears that the concerned authorities are totally unmindful of the plight of those sections of the society, who are deprived of their only asset like small house, small industrial unit etc. They do not realise that having one's own house is a lifetime dream of majority of population of this country. Economically affluent class of society can easily afford to have one or more houses at any place or locality in the country but other sections of the society find it extremely difficult to purchase land and construct house. Majority of people spend their lifetime savings for building a small house so that their families may be able to live with a semblance of dignity. Therefore, it is wholly unjust, arbitrary and unreasonable to deprive such persons of their houses by way of the acquisition of land in the name of development of infrastructure or industrialisation. Similarly, some people set up small industrial unit after seeking permission from the competent authority. They do so with the hope of generating additional income for their family. If the land on which small units are established is acquired, their hopes are shattered. Therefore, before acquiring private land the State and/or its agencies/instrumentalities should, as far as possible, use land belonging to the State for the specified public purposes. If the acquisition of private land becomes absolutely necessary, then too, the concerned authorities must strictly comply with the relevant statutory provisions and the rules of natural justice.
44. In the result, the appeals are allowed. The impugned orders are set aside. As a corollary to this, the writ petition filed by the appellant is allowed and the acquisition of his land is declared illegal and quashed. The appellant shall get cost of Rs.2,50,000/- from the respondents."
(xii)Relying upon the judgment in R.Kumar and others v. State of Tamil Nadu reported in (2007) 2 MLJ 384, the Learned Senior Counsel contended that unless the land is declared as a highway following section 3 and the mandatory procedures under section 8 are followed, the notification cannot be issued and therefore has to be struck down.
(xiii) M/s.Ace Housing Projects v. The State represented by the Secretary to Government [W.P.No.17908 of 2009, decided on 25.10.2010]. Paragraph 15 would run thus:
"15. ... As per Section 15 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 and thereafter, after considering the cause shown by the owner or other person having interest on such land, pass such an order and in the event of the government being satisfied any land being acquired, issue draft notification under Section 8 inviting objections if any on the proposed fixation of highway boundary, building line or control line or highway boundary and the building line and the building line and the control line and the draft notification shall contain all the particulars as contemplated under the Act and after considering the representation if any, the Highways Authority shall with the approval of the State Highways Authority, drop the proposal or issue final notification and on or after the date of the publication of the notification, no person shall as per the restriction contained under Section 9, erect any construction except with written permission of the Highways Authority. It is pointed out that such restriction imposed under Section 9 against any construction is not applicable to the construction of building before the date of notification issued under sub section 8. Thus, according to the learned senior counsel for the petitioner before any land is sought to be acquired at the commencement of the acquisition proceedings, the petitioner is entitled to be heard at two stages. If that is so, the petitioner/land owner will be definitely given due opportunity to raise all his objections including his objections regarding the alignment to be adopted and the conduct of the respondent in the matter of sanction of different alignment, at the appropriate stage as above referred to. Except such liberty, the petitioner is not entitled to any more relief in this writ petition.
(xiv) CeeDeeYes's Standard Towers (P) Ltd., v. The Collector of Chennai reported in 2013 (1) CWC 425. Paragraphs 6 to 9 would read as follows:
"6. In fact, a Division Bench of this Court, in R.Kumar v. State of Tamil Nadu (2007 (2) MLJ 384), had an occasion to deal with Section 8(4)(a) of the Act in a case connected to OMR Road presently called IT Corridor coming under the jurisdiction of the Tamil Nadu Highways Act, and concluded as follows:
"Hence, we hold that once it is a Highway, Highway authorities can fix different building line and control line for such highway."
In the present case, the Road in question was not declared as Highway and no material whatsoever has been produced before this Court in that regard. That being so, in my considered view, issuance of notification under Section 15(2) without complying with the requirement under Section-8 would only reflects the arbitrary exercise of power.
Though the difference between Section 8(1)(2)&(3) and 8 (4) of the Act is subtle - that makes a huge difference in working out of this Act, when Section 8(1)(2)&(3) envisages for issuance of Notification calling for objections from the landowners to fix the Highway boundary, boundary line, building line, sub-Section 4 being notwithstanding clause does not say that the Government may refrain from fixing the Highway boundary when it says, the Government may refrain from fixing the building line or control line for such highway. In view of this difference in the application of the provision, resorting to Section 15 (2) of the Act to acquire the petitioner's land without first complying Section 8 is arbitrary exercise of power.
7. Further, earlier, this Court had passed an order of interim stay of dispossession alone on 03.03.2004 and that does not mean that the respondents should keep quiet from passing the Award. Admittedly, till now, the respondents have not passed any Award in respect of the land in dispute. A letter, dated 12.04.2012, in Rc.Lr.No.MG/LA-001/2002,, written by one G.Sornam Amutha, Special Tahsildar (LA) Highways, Mambalam-Guindy Taluk at Collector's Office, Chennai-1, addressed to the Divisional Engineer (Highways), Projects, Division-I, Chennai-44, also admits the case of the petitioner that no Award or compensation has been paid to the land owner. Hence, it is necessary to extract below the relevant portion of the said letter, " In this regard, I wish to state that the Principal Secretary and Commissioner of Land Administration in Lr. No.M2/13702/2010, dt.28.05.2010 instructed that since the stay was granted for dispossession alone and that the Hon'ble High Court ordered that other proceedings to go on, in this case except 9% interest award has to be passed giving interest 12% additional market value to the land owner and that the particular piece of land has to be included for passing the draft award in consultation with the Government Pleader. Accordingly draft award was passed except for 9% interest, only to proceed further after the outcome of pending case by the Hon'ble High Court. Since the W.P. No.39261/03 is still pending before the Hon'ble High Court, no further action was taken in this regard and no money as compensation has been paid to the land owner so far."
Therefore, having regard to the above lapse that neither any Award has been passed nor the owner of the land / interested person has been paid with the compensation till date coupled with the other lapse that the Highways Authority issued the impugned notices without complying with the pre- requisites by issuing a Notification under Section 8(1) of the Act fixing Highway Boundary, building line or control line and without even issuing notice as per Section 8(2) (b) of the Act to the person/persons likely to be affected by such Notification, it can only be concluded that issuance of the notices under Section 15(2) is nothing but arbitrary exercise of power. Therefore, the District Collector has wrongly exercised the powers authorised to him through G.O. Ms. No.206, Highways (HN2) Department, dated 29.09.2003 without following the procedure as contemplated under Section-8. Further, when the respondents have not even passed the Award till now, giving compensation to the land owner/petitioner herein, on this ground also, the entire proceedings fall to ground. However, since the petitioner, by his letter dated 03.04.2002, which finds place at Page No.291 of the typed-set of papers, voluntarily came forward to hand over the land in dispute to the respondents on condition that the petitioner is given the TDR benefits by the CMDA, whereupon, he is also prepared to file an application for withdrawal of the Writ Petition making it clear that he will not make any claim for compensation which will run to about fifty lakhs rupees, this Court finds all justification to accept such balanced plea.
8. Even though Mr.K.Rajasrinivas, learned counsel appearing for the CMDA argued that the petitioner's land was acquired long time ago by paying compensation and when the same became subject matter of dispute, the CMDA granted TDR; therefore, once again, the petitioner cannot ask for TDR benefit, such argument appears to be as vague as it is for the reason that there is no pleading in that regard and further, no document whatsoever has been filed by the CMDA to substantiate that the petitioner's land covered by the present impugned notices were acquired on earlier occasion by paying compensation and to show transfer of TDR benefits. Therefore, the unreasonable stand of the CMDA that they are even prepared to pay more value viz., Rs.50 lakhs to the petitioner by defraying the public exchequer instead of granting TDR benefits is wholly misconceived.
9. In the above circumstances, this Court, after finding that the impugned notices issued under Section 15(2) of the Act are vitiated for the reason that the respondents have not followed the pre-requisites as mentioned in Section 8 of the Act and also by taking note of the fact that no award has been passed to pay compensation to the petitioner and further, by keeping in mind the highway widening work involving utmost public importance should be allowed to continue and it should not be stultified, directs the respondents to grant, in lieu of the compensation based on current market value, TDR Benefits in favour of the petitioner/M/s.CeeDeeYes Standard Towers Private Limited, who are the registered owners of the property as they have undertaken not to claim for compensation based on today's market value, within a period of two months from the date of receipt of a copy of this order, failing which, the impugned notices shall stand quashed, in which event, needless to mention that the respondents are at liberty to proceed afresh in terms of the Act by following Sections-8 and 15 thereof including payment of compensation for the land on today's market value, if not paid earlier to the petitioner. Writ Petitions are ordered on the above terms. Connected Miscellaneous Petitions are closed."
Relying on the above decisions, the Learned Senior Counsel submitted that without declaring the road concerned as Highways and without following the procedures as contemplated under Section 8 of the State Act, no notice under Section 15 of the State Act can be issued. Here, in the case on hand, the statutory requisites have not been followed at all and hence the impugned notification is liable to be struck down. He also placed reliance upon the following decisions:
(xv) E.Vivekanandan v. The Government of Tamil Nadu [W.P.No.19932 of 2006, decided on 05.07.2006] was relied upon to contend that declaration of the road as a highway is mandatory.
(xvi) Purushothma Naidu, K.V. v. The District Collector, North Arcot District reported in 2004 (3) CTC 261. Paragraphs 8 to 10 are extracted hereunder:
"8. In The Land Acquisition Officer and Special Tahsildar (LA) v. R.Manickammal, 2002 (2) C.T.C. 1, it was observed as follows : "State Act is completely different as Government intervention is not at all contemplated -- Collector is appropriate authority to decide acquisition of land -- Provisions of State Act is absolute -- Decision to acquire land was to be exercised only by Collector by application of mind independently -- Legislature did not reserve any power to State Government to have supervisory role as is provided under Central Act -- When legislature names particular authority to exercise power, only that authority has to exercise authority and nobody else."
In that case, the Government interfered with the decision of the Collector that it was not desirable to acquire the land and it was held that the Government could not do so since the Governmental intervention was unwarranted.
9. In the present case, it is obvious that the notice does not say that the Collector is satisfied. From the mere fact that the words refer to the notice being one under Section 4(1), the Court cannot presume that the Collector was satisfied. When the Section mandates that the Collector should be satisfied, then there should be a record of the satisfaction of the Collector. If the notice does not indicate such satisfaction, then at least the records should show that the Collector is indeed satisfied with the recommendations of the Special Tahsildar that the acquisition was necessary.
10. In view of the decisions referred to above, it will not be possible to hold the notice itself as invalid if the records indicate satisfaction. But, in the absence of materials to show satisfaction, Section 4(1) cannot be said to have been complied with. As observed by the Supreme Court in the decisions cited supra, if the notice itself expresses the satisfaction, then it is for the land owner to prove that there was no real satisfaction. If the notice does not indicate satisfaction, then it is for the Government to prove that there was satisfaction. In this case, there is no evidence to show that the Collector was satisfied since as we have seen from the records, cyclostyled forms have been filled up.
***** *****
12. Very often, the manner in which the proceedings are initiated leaves one in great doubt as to whether the alleged public purpose genuinely exists. Signatures are obtained from persons on cyclostyled papers to establish the requirement. In Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp. (1) S.C.C. 596, it was observed, "It is inherent in every sovereign State, by exercising its power of eminent domain, to expropriate private property without owner's consent. Prima facie, the State would be the judge to decide whether a purpose is a public purpose. But, it is not the sole judge. This decision will be subject to judicial review and it is the duty of the Court to determine whether a particular purpose is a public purpose for which individual interests are adjusted with public interest by social engineering. "So long as the exercise of power is for public purpose"
are the words used in Chameli Singh v. State of U.P., 1996 (2) S.C.C. 549. It is this which validates the power of eminent domain. I also take judicial notice of the fact that in land acquisition proceedings initiated for Housing Board purpose, the State has recorded that, the assessment of the extent of land required has not been done on a scientific basis. This must be avoided. Individual rights cannot be sacrificed so carelessly and at what cost? To whose advantage is it, if huge constructions are put up by expropriatary measures and there are no takers?"
(xvii) Jayaraman v. State of Tamil Nadu reported in 2014 (1) CWC 635. (xviii) Kulsum R. Nadiadwala v. State of Maharashtra reported in (2012) 6 Supreme Court Cases 348. Paragraphs 12 to 14 are reproduced hereunder:
"12. The said provisions came up for consideration before this Court in the case of Collector (District Magistrate) Allahabad & Anr. Vs. Raja Ram Jaiswal, (1985) 3 SCC 1. In the said decision, the Court specifically observed that there are two requirements for the issuance of Notification under Section 4 of the Act. The first requirement is that the notification requires to be published in an Official Gazette and the second requirement is that the acquiring authority should cast public notices of the substance of such notification in a convenient place in the locality in which the land proposed to be acquired is situate. The Court has further observed that both the contentions are cumulative and they are mandatory.
13. In the instant case, the respondents before the High Court had filed their reply affidavit. They did not dispute the contentions of the appellants that they had not issued any public notices as required under Section 4 of the Act. They only reiterated that such notification was published in the Official Gazette. Since the mandatory requirement as required under Section 4(1) of the Act is not complied with by the respondents, while acquiring the lands in question, in our opinion, the entire acquisition proceedings requires to be declared as null and void.
14. This Court in J&K Housing Board v. Kunwar Sanjay Krishan Kaul, (2011) 10 SCC 714, has observed that all the formalities of serving notice to the interested person, stipulated under Section 4 of the Act, has to be mandatorily complied with in the manner provided therein, even though the interested persons have knowledge of the acquisition proceedings. This Court further observed thus:
"32. It is settled law that when any statutory provision provides a particular manner for doing a particular act, the said thing or act must be done in accordance with the manner prescribed therefor in the Act. Merely because the parties concerned were aware of the acquisition proceedings or served with individual notices does not make the position alter when the statute makes it very clear that all the procedures/modes have to be strictly complied with in the manner provided therein. Merely because the landowners failed to submit their objections within 15 days after the publication of notification under Section 4(1) of the State Act, the authorities cannot be permitted to claim that it need not be strictly resorted to.""
(xix) J.Parthiban and 14 others v. State of Tamil Nadu and 2 others reported in 2008-2-L.W. 989.
(xx) Competent Authority v. Barangore Jute Factory and others reported in (2005) 13 Supreme Court Cases 477. Paragraph 10 would run thus:
"10. Coming to the point regarding filing of claim for compensation on behalf of the Company by its General Manager with complete details of the land under acquisition, we must note that at the relevant time in 1998 and thereafter till 2001, the writ petitioner Company had no existence. On account of demands of workers of the factory and to meet other statutory demands, a committee was appointed by the High Court in the winding-up proceedings pending before it to run the factory. The claim for compensation was filed by somebody as the General Manager of the Company. He had no authority to do so. The Committee had to manage only the factory and had nothing to do with ownership issues. So far as details of land under acquisition contained in the claim is concerned, it is based on material contained in the impugned notification and the appendix. Filing of such a claim by somebody who had no authority to do so, cannot deprive the owners of their right to challenge the acquisition of the lands owned by the Company. Therefore, neither delay in filing the writ petition nor filing of claim for compensation can stand in the way of the writ petitioners in seeking relief in these proceedings."
(xxi) The Land Acquisition Officer and Special Tahsildar (LA) v. R.Manickammal reported in 2002 (2) CTC 1. Paragraph 4 would run thus:
"4.We have perused the scheme of State Act 31 of 1978. The scheme of State Act differs from that of Central Act. In the Central Act the Government is the authority to exercise the power, and the Government by notification can delegate the functions to any authority to perform the functions under the Act and among the authority so delegated, the Collector also is one of the same. The State Act is completely different as the Governmental intervention is not at all contemplated and the donee of the power is the Collector himself and not anybody else . Section 4 of the State Act reads as follows:-
"4.Publication of preliminary notification and powers of officers thereupon.-(1) Whenever it appears to the (appropriate Government) that land in any locality (is needed or) is likely to be needed for any public purpose (or for a company) a notification to that effect shall be published in the Official Gazette (and in two daily newspapers circulating in that locality of which at least one shall be in the regional language) and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification).
2.Thereupon it shall be lawful for any Officer, either generally or specially authorized by such Government in this behalf, and for his servants and workmen,-
-to enter upon and survey and take levels of any land in such locality;
-to dig or bore into the sub-soil;
-to do all other acts necessary to ascertain whether the land is adapted for such purpose;
-to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon;
-to mark such levels, boundaries and line by placing marks and cutting trenches; and
-where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle:
Provided that no person shall enter into any building or upon any enclosed Court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days notice in writing of his intention to do so."
There is no other provision excepting the above provision empowering any authority to deal with the acquisition. The provision is absolute in so many words that if the Collector is satisfied that the lands should be acquired, he will acquire the land and then when a notification is issued, the land vests absolutely with the Government free from all encumbrances as contemplated under Section 5 of the Act. A decision to acquire a land by the Collector has to be exercised only by the Collector by application of his mind independently and the Legislature did not provide any power of delegation. This Legislature did not even reserve any power in the State to have a supervisory role as is provided in the Central Act. In view of the amending Act 68/84, the Land Acquisition Act of 1894 (Central Act), the Governmental role is increased, as, before passing the award, there is every right for the Government to probe into the award and direct the Land Acquisition Officer to modify the award. Even with regard to the finality of the acquisition, the report under Section 5A has to be sent to the Government and even if the report is against the acquisition, the Government can overrule the said decision of the Land Acquisition Officer and direct the publication of declaration under Section 6 of the Act. Such contingency is not provided in the State Act. It is well settled law that when the Legislature did not name any other authority for the exercise of powers and names only a particular authority, only that particular authority has to exercise the power and nobody else. In this view of the matter, the learned single Judge has rightly held that the Governmental intervention was unwarranted and without jurisdiction. For the reasons mentioned supra, we concur with the said orders of the learned single Judge and dismiss these Writ Appeals. Consequently, connected C.M.Ps are also dismissed. No costs."
(xxii) Union of India v. Shiv Raj reported in (2014) 6 Supreme Court Cases 564.
(xxiii) Sree Balaji Nagar Residential Association v. State of Tamil Nadu and others [Civil Appeal No.8700 of 2013, etc., decided on 10.09.2014].
The above judgments are in consonance with the contentions of Mr.R.Viduthalai, learned Senior Counsel, who further assailed the notification contending that since the impugned notification had been issued without authority and against the provisions of the state Act which is repugnant to the central Act, there cannot be any acquisition for the construction of a Road Over Bridge. He further contended that unless the action is taken as per the procedures, no acquisition proceedings can be initiated in that regard and therefore sought the interference of this court to set aside the notification issued under section 15(2) of the State Act.
W.P(MD)Nos.2326 to 2329 of 2012 and 1441 of 2013:
33. Mr.N.S.Manoharan, learned Counsel representing Mr.P.Radhakrishnan, learned Counsel for the petitioners in W.P(MD)Nos.2326 to 2329 of 2012 and 1441 of 2013, submitted that the impugned notification is vitiated by arbitrariness and mala fides, as the original proposal was only to put up Road Over Bridge, but, later, on inspection, it was converted into Road Under Bridge.
34. He further contended that though G.O.No.236, dated 03.10.2008 had been issued for construction of Road Over Bridge in LC 403 in Ramamoorthy Road, Virudhunagar, the Divisional Engineer (Highways), Projects, Tirunelveli, by his letter dated 13.04.2009 addressed to the Superintending Engineer (Highways), Projects, Madurai, stated that during the discussion with the Honourable Minister for Highways and Minor Ports, Minister for Backward Class and the Chief Engineer (Highways), Projects, on 24.02.2009, at Chennai, a decision was taken to the effect that Road Under Bridge was enough instead of Road Over Bridge, since heavy land acquisition would be involved in the Road Over Bridge.
35. Placing reliance on various communications between the Government authorities, he submitted that originally, the administrative sanction was given only for the construction of Road Over Bridge, however, the same had been converted into one of Road Under Bridge consequent to the decision taken in the High Level Committee held on 24.02.2009 and thereafter, Virudhunagar Municipality was required to pass a resolution for the construction of a Road Under Bridge. However, the proposal had been suddenly converted into one for construction of Road Over Bridge and such reversion from RUB to the ROB, is nothing but, arbitrary and mala fide and hence, the tender notification issued by the authorities is also liable to be quashed.
36. He also pointed out that the total extent of the land required for the construction of Road Over Bridge is 2,488.23 sq. mtrs., whereas the total extent of the land required for construction of Road Under Bridge is only 215.8225 sq. mtrs and hence, the Road Under Bridge would not cause any loss to the public at large. It is also stated that the impugned notification has covered 141 buildings and the extent of land proposed to be acquired in each building would come around 10 sq. ft. to 60 sq. ft., and if the proposal for construction of Road Over Bridge is implemented, serious prejudice would be caused to the general public, as the entire street had been covered by the residential houses on either side. Accordingly, he prayed for allowing the writ petitions.
W.P(MD)No.12639 of 2012:
37. Mr.R.Vijayakumar, learned Counsel for the petitioners in W.P(MD)No.12639 of 2012, has adopted the arguments advanced by Mr.R.Viduthalai, learned Senior Counsel appearing for the petitioners in W.P(MD)Nos.2190 to 2195 of 2012 and 475 of 2013.
W.P(MD)No.2129 of 2012:
38. Mr.Veera Kathiravan, learned Counsel for the petitioners in W.P(MD)No.2129 of 2012, put forth his arguments, mainly on the following points:
(i) Scope and Procedures of the State Act.
(ii) Mandatory requirements before notification under Section 15(2) of the State Act.
(iii) Violations committed before acquisition, by the impugned notification.
(iv) Factual details causing notification under Section 15(2) of the State Act, as arbitrary.
(v) Mala fide exercise of the power of acquisition under the State Act.
Point Nos.(i) and(ii):
39. Mr.Veera Kathiravan, learned Counsel for the petitioners in W.P(MD)No.2129 of 2012, drawing the attention of this Court to various provisions of the Tamil Nadu Highways Act, 2001, submitted that before issuance of the notification under Section 15(2) of the Act, the provisions of Section 15(1) of the Act should be followed, however, there is a statutory conflict between the State Act and the Central Act and that the object of the State Act is 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.
40. It is his further contention that as per Section 3 of the Act, the Government may, by notification, declare any road or land to be the Highways and that Section 5 of the Act, also provided that the Chief Engineer (General) is the State Highways Authority and the Divisional Engineer is the Highways Authority and that the State Highways Authority is for the overall supervision of the Construction, Maintenance, Development or Improvement, as per Section 6 of the Act and hence, the Divisional Engineer has to carry out the purpose of Section 6 of the Act and every Highways Authority may undertake the same.
41. Section 8 of the Act gives power to the Divisional Engineer in all aspects and that there is a statutory duty on the Highways Authority before going for construction or development of a highway which is undertaken or proposed to be undertaken, fix, (a) the highway boundary, building line, or control line; or (b) the highway boundary and the building line and (c) the building line and the control line and that the authority shall call for objections from all the persons likely to be affected, by issuing notice under Section 8(1), which shall contain all the details of the lands situated between the highway boundary line and control line proposed to be fixed and that the Highways Authority after considering the representation, if any received, under Section 8(2) of the Act, may, with the approval of the State Highways Authority, drop or publish final notification, he added.
42. According to him, as per Section 9 of the Act, on or after the date of publication of the notification under Section 8(1) of the Act, no person shall erect or construct in such a highway or in such area, in respect of any land lying between the highway boundary and the building line or between the building line and the control line, as the case may be. He also submitted that Section 13 of the Act dealt with the preparation of the maps, whereas Section 15 (1) of the Act dealt with the power to acquire land.
43. Coming to the question of competency, the learned Counsel further contended that the Government Order in G.O.Ms.No.78 Highways and Minor Ports (HF 2) Department, dated 22.06.2011, had been issued, authorising the District Revenue Officer to exercise the power under Section 15(2) of the State Act and that the statutory power of the Government under Rule 5 of the Tamil Nadu Highways Rules, 2003, had already been delegated to the District Collector and in such an event, the said power could not be delegated once again in favour of the District Revenue Officer to issue a notification under Section 15(1) of the State Act by taking advantage of Section 56 of the State Act. Accordingly, he contended that without amendment to the Rules, delegation of the power conferred on the District Collector, in favour of the District Revenue Officer is illegal and such quasi judicial power given to the Government, could not be delegated to two different authorities, contrary to the provisions of the State Act. Regarding the aspect that the State Highways Authority or the Divisional Engineer or the District Collector, cannot further delegate their powers, he relied on the decision of the Division Bench of this Court in R.Antony Doss and another v. The State of Tamil Nadu and another reported in 1991 - II -MLJ 486. Accordingly, he submitted that unless the provisions of Section 56(3) of the State Act be placed before the Legislative Assembly, for modification, correction, rectification, amendment, it would not be enforceable at all. In support of his contentions, he also referred to the decision of the Honourable Supreme Court in Union of India v. National Hydroelectric Power Corporation Ltd., reported in (2001) 6 Supreme Court Cases 307.
44. Further, he argued that before issuing the impugned notification, the Government should have arrived at a satisfaction that the requirement of lands, is for a Highway and that what is to be acquired, should be declared and that before issuing the notification under Section 15(2) of the State Act, there must be a declaration straightaway under Section 3 of the State Act and unless and until the road is declared as a Highway, the Government cannot have a satisfaction for requiring the road under Section 15(1) of the State Act.
45. With regard to the delegation made in favour of the District Revenue Officer, the learned counsel argued that as per Section 15(2) of the State Act, what is delegated to District Revenue Officer is, the power to issue a notification calling for the objections to the Highways Department and conduct an enquiry as per procedures and send a report to the Government and that the delegation had been made in suppression of the earlier proceedings and the Rules.
46. Regarding the impugned notification issued under Section 15(2) of the State Act, the learned counsel submitted that it is only a show cause notice and that since the petitioners are questioning the authority who issued the said notification as he is not at all an authority delegated under the Act, the writ petitions would be maintainable. He submitted that before issuing a notification under Section 15(2) of the State Act, an enquiry is contemplated and that no notice under Sections 8 or 3 of the State Act had been issued before going for acquisition of land.
47. The learned counsel further contended that the Divisional Engineers of the Highways Department are the Highways Authority of the respective Divisions, however, in the case on hand, the Divisional Engineer (Highways), NABARD and Rural Roads, Paramakudi, is the Highways Authority of the Highways Department and that the failure to comply with the provisions of Sections 3, 8 and 13 of the State Act, would be fatal to the impugned notification and that the statutory requirement is that there must be satisfaction by the Government on materials to the effect that it required such lands for Highways, but, neither the Government nor the District Collector had shown as to how the Government has satisfied that it is a Road Over Bridge or a Road Under Bridge. Once again, he reiterated the point that either for construction of a Road Over Bridge or a Road Under Bridge, the satisfaction of the Government should not only be in paper, but also through the direction of the District Collector or the District Revenue Officer to acquire such land and that no such proceedings or directions emanated from the Government and that it would fall foul of the procedures as contemplated under Sections 3, 8 and 14 of the State Act.
48. To strengthen his submissions that the Chief Engineer (General) is the proper authority and before the Highway is formed, notification is required and that if the declaration of Road is made, without notifying under Section 3 of the State Act, the respondents could not invoke Section 15 of the State Act and therefore, the impugned notification is invalid in the eye of law, the learned counsel relied on the decision of the Division Bench of this Court in R.Kumar and others v. State of Tamil Nadu reported in (2007) 2 MLJ 384. .
49. The learned counsel also placed reliance on the decision of this Court in CeeDeeYes Standard Towers (P) Ltd. v. The Collector of Chennai reported in 2013 (1) CWC 425l, to contend that failure to comply with Section 8 of the State Act, is an arbitrary exercise of power and that the impugned notification would go. He, thus, submitted that the above decision would make it clear about the pre-requisites before the notification under Section 15(2) of the State Act.
50. Whereas, the learned counsel had also drawn the attention of this Court to the decision of this Court in Jayaraman v. State of Tamil Nadu reported in 2014 (1) CWC 635. Paragraphs 30, 31 and 36, are reproduced hereunder:
"30. Now let me consider the objects of the Act. Tamil Nadu Highways Act, 2002, has been framed 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. Object of the Act further states that it is expedient in the public interest, to statutorily declare the State highways and to create Highways authorities for the purpose of construction, maintenance or development of such highways. The Act empowers the Government may, by notification, declare any road, way or land to be highway and classify it, as any one of the following, namely:- (i) a State Highway; (ii) a major district road; (iii) other district road; or (iv) a village road: Provided that where such road, way or land whether in whole or in part is owned by any local authority, such notification shall be issued with the concurrence of that local authority by a resolution passed by it in this behalf. Some of the definitions in the Highways Act are reproduced hereunder: "(5) "Collector" means the Collector of a district and includes any officer specifically appointed by the Government to perform the functions of the Collector under this Act;
(8) "Encroachment" means any unauthorised occupation of any highway or Land where the construction of a highway is undertaken or proposed to be undertaken or part thereof, and includes any unauthorised--
(a) erection of a building or any other structure, balcony, porch or projection on or over or overhanging the highways or part thereof; or
(b) occupation of such highway of such land, after the expiry of the period for which permission was granted for any temporary use under this Act; or
(c) excavation of embankments of any sort made or extended on such highways or part thereof or underneath such highway or part thereof. (9) "Erection" in relation to building, includes the construction, extension, alteration or re-erection of any structure or building."
31. As per Section 6 of the Act, the State Highways Authority shall be responsible for the overall supervision of the construction, maintenance, development or improvement of the highways in the State and for the restriction of ribbon development along the highways. The State Highways Authority shall, from time to time, issue such instructions, as may be necessary to the Highways authorities, for carrying out the purposes of this Act. Every Highways authority may, with the approval of the State Highways Authority, undertake the construction, maintenance, development or improvement of any highway and for restriction or ribbon development along such highway, including for the prevention and removal of encroachments and for all matters necessary or incidental thereto, in its division, in such manner and within such time as may be specified by the State Highways Authority in this behalf. Section 7 of the Act, empowers the Government may, in consultation with the State Highways Authority, enter into an agreement with any person, in relation to the construction, development, maintenance or repair of the whole or any part of any highway.
***** ***** ***** *****
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 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, all acts can be done by the competent authorities, which includes acquisition of lands also."
51. Further, Mr.Veerakathiravan, the learned counsel, who emphasized the said issue, referred to the decision of this Court in E.Vivekanandan v. The Government of Tamil Nadu [W.P.No.19932 of 2006, decided on 05.07.2006] and paragraphs 5 to 7, are extracted hereunder:
"5. The learned counsel for the petitioner submitted that enquiry was conducted without following the Rule 5 (4) of Tamil Nadu Highways Rules 2003; that the respondent failed to consider the objections filed by the petitioner properly; that the road is not declared under Section 3 of the Act as State Highway; that the petitioner has constructed the building in his land by availing loan from the Co-operative Society; that the petitioner has no other property except the property which is sought to be acquired by the respondents and prayed for quashing the notification issued under Section 15(1) of the Act.
6. Mr.M.Dhandapani, Additional Government Pleader, appearing for the respondents submitted that the said road was declared under Section 3 of the Act as State Highways by notification of the Government Gazette dated 22.10.2003. After the order passed by this Court in the said writ petition, the petitioner was issued with notice under Section 15(2) of the Act which was also received by the petitioner and he also submitted his objection; that thereafter enquiry was conducted on 1 7.10.2005 and 26.10.2005 and the objection of the petitioner was also considered and rejected; that thereafter notification under Section 15(1) of the Act was published; that the respondents have followed all the mandatory provisions of Law before initiating acquisition proceedings and prayed for dismissal of the writ petition.
7. This Court considered the arguments of the Counsel on either side and also perused the materials placed. It is not in dispute that the respondents have issued notice under Section 15(2) of the Act for which the petitioner also submitted his objections. The respondent considered all those objections and thereafter issued the notice under Section 15(1) of the Act. Under Section 3 of the Act declaring the road as State Highway was also made, hence, this Court is of the considered view that the respondents have complied with all the mandatory provisions of law before issuing notification under Section 15(1) of the Act and no interference of this Court is warranted."
52. The learned counsel also relied on the decision of this Court in M/s.Ace Housing Projects v. The State [W.P.No.17908 of 2009, decided on 25.10.2010]. Paragraph 15 would run thus:
"15.The learned senior counsel for the petitioner at this juncture has taken the court to various provisions of Tamil Nadu Highways Act 2001 viz., Sections 3, 8 to 10, 14 and 15. Section 15 deals with the power of the Government to acquire the land 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. As per Section 15 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 and thereafter, after considering the cause shown by the owner or other person having interest on such land, pass such an order and in the event of the government being satisfied any land being acquired, issue draft notification under Section 8 inviting objections if any on the proposed fixation of highway boundary, building line or control line or highway boundary and the building line and the building line and the control line and the draft notification shall contain all the particulars as contemplated under the Act and after considering the representation if any, the Highways Authority shall with the approval of the State Highways Authority, drop the proposal or issue final notification and on or after the date of the publication of the notification, no person shall as per the restriction contained under Section 9, erect any construction except with written permission of the Highways Authority. It is pointed out that such restriction imposed under Section 9 against any construction is not applicable to the construction of building before the date of notification issued under sub section 8. Thus, according to the learned senior counsel for the petitioner before any land is sought to be acquired at the commencement of the acquisition proceedings, the petitioner is entitled to be heard at two stages. If that is so, the petitioner/land owner will be definitely given due opportunity to raise all his objections including his objections regarding the alignment to be adopted and the conduct of the respondent in the matter of sanction of different alignment, at the appropriate stage as above referred to. Except such liberty, the petitioner is not entitled to any more relief in this writ petition."
53. According to the learned counsel, the intention of the legislature is that, before going for an alignment, for the purpose of convenience, prior notice to decide whether the alignment is correct or not is necessary and in either side of the building line and the boundary line, alignment has to be decided and therefore, pre-requisite decision is very much required and the decision was not taken by the concerned authorities.
Point Nos.(iii) and (iv):
54. According to the learned counsel, the Chief Engineer (General) has been appointed as the State Highways Authority for the purpose of the State Act, however, in this case, it is the Chief Engineer (Planning) and that if the proposal is not supported by any of the Government authorities for a bridge, whether Road Over Bridge or a Road Under Bridge, no decision could be taken before issuing such Government Order and that no other order from the Government or the State Highways Authority was issued to proceed under Section 15(2) of the Act and amidst the same, there was a change in the political scenario.
55. The learned counsel further submitted that in the meeting held on 24.02.2009, among the Honourable Minister for Highways and Minor Ports and the Honourable Minister for Backward Class and the Chief Engineer (H) Projects, a decision was taken that Road Under Bridge (RUB) is enough in lieu of Road Over Bridge (ROB) and that the General Alignment Diary (GAD) was already submitted and accordingly, there was a change in nomenclature and that the Divisional Engineer and Assistant Divisional Engineer would take a decision after planning for the Road Under Bridge (RUB) and that the estimate for the construction of Road Over Bridge would come around Rs.20.53 Crores, whereas it would be only Rs.17.4 Crores for a Road Under Bridge.
56. The learned counsel also pointed out that during the joint meeting with the Railway higher officials on 10.05.2010 at Chennai, the Chief Engineer and the Superintending Engineer had participated and the Secretary, Highways and Minor Ports Department had instructed the authorities concerned to approach the District Collector to get the clearance from the District Traffic Committee of Virudhunagar District for the construction of the Road Under Bridge at LC 403, whereas the local body was not co-operating to pass a resolution for the construction of a Road Under Bridge, consequent to which, the Joint Secretary to Government, had requested the Director of Municipal Administration, Chennai, to get a resolution from Virudhunagar Municipality and therefore, till 2010, it was a proposal for the construction of Road Under Bridge, which was evident from the communications addressed to the Chief Engineer. He further referred to the proceedings of the District Collector, dated 23.07.2010, addressed to the Commissioner as well as the Chairman of Virudhunagar Municipality, and submitted that the Municipality had been requested to pass a resolution for the construction of Road Under Bridge, since the administrative sanction was also given to the tune of Rs.20.53 Crores and that there was no sufficient breadth for the construction of Road Over Bridge and that the Divisional Engineer (H), Nabard and Rural Roads, Paramakudi, in his proceedings dated 08.03.2011, had communicated the Superintending Engineer (H), Nabard and Rural Roads, Tirunelveli, that action was being taken to implement the proposal for the construction of RUB at LC-
403.
57. Further, the learned counsel submitted that the District Collector, by his proceedings dated 11.04.2011, directed the Revenue Divisional Officer, Aruppukkottai, to send his proposals under Section 15(2) of the Act and even on that date, the Land Plan Schedule had been made only for the construction of Road Under Bridge at LC-403.
58. Again, the learned counsel contended that no High Level Committee meeting had been held as stated, but, only there is an oral instruction for changing the Road Over Bridge into the Road Under Bridge, since the Road Over Bridge could not be accommodated with the available width as it may involve land acquisition in the built up portion.
59. The learned counsel?s next contention is that the Land Plan Schedule had been prepared by a private consultancy, wherein the Highways Officials had put their signatures and based on the same, the impugned notification under Section 15(2) of the Act, was issued on 30.12.2011.
60. It is contended that the original Land Plan Schedule was only for Road Under Bridge and without verifying the relevant records, the Land Plan Schedule was prepared on 26.12.2011 and that the resolution with regard to road safety, had not been placed before this Court. He also contended that it is very crucial to note that only three days before the impugned notification, the Land Plan Schedule had been prepared on 26.12.2011.
61. The learned counsel pointed out that in the original Land Plan Schedule (as found in page 44 of Volume I of the typed set of papers), the signatures of the Commissioner of the Municipality and the Town Sub Inspector of Survey, who are competent and in possession of the relevant documents, are found. However, in the latest Land Plan Schedule for a Road Over Bridge, no signatures of either the Commissioner of the Municipality or the Town Sub Inspector of Survey are found and that the Municipality concerned, who is the custodian of the documents, was not a party to the Land Plan Schedule and therefore, it would render the entire exercise as arbitrary.
Point No.(v):
62. Mr.Veera Kathiravan, learned Counsel, further contended that it is proposed to construct a Road Over Bridge at LC 406 and a Road Under Bridge at LC 406-A and that the funds were allotted and even the administrative sanction was also given in the year 2008 and that the 12th petitioner herein was the former Member of the Legislative Assembly and due to political motive and mala fides, the impugned notification had been issued.
63. The learned counsel argued that the District Collector, Virudhunagar District, by his proceedings in Roc.D1/5487/2010, dated 11.04.2011, sent the Land Plan Schedule to the Revenue Divisional Officer, Aruppukkottai, who in turn, by his proceedings dated 27.04.2011, requested the Municipality to pass a resolution and absolutely, there is no stalling of the project except the delay of ten months on the part of the Municipality. It is the specific contention of the learned Counsel that no document had been produced to substantiate as to how the Road Under Bridge had been changed into Road Over Bridge and therefore, he sought to quash the G.O.Ms.No.236, dated 03.10.2008.
64. Mr.Veera Kathiravan, learned Counsel, put forth his submissions on malice, contending that the impleading petitioner in M.P(MD)No.1 of 2014 in W.P(MD)No.2129 of 2012, is sponsored by the State and that initially, the proceedings were challenged and interim stay was granted and thereafter, the impleading petitioner filed a Public Interest Litigation, wherein it was the stand of the petitioners that they were ready before the Division Bench of this Court on two arguments, viz., maintainability of the Public Interest Litigation and to continue before the Division Bench or before the Judge of this Court and that it was represented that already, the proceedings are pending before the learned Judge of this Court and that all the matters were taken up together. He also submitted that in the Public Interest Litigation, no counter affidavit was filed by the Government and hence, the impleading petitioner is, no doubt, sponsored by the Government.
65. The learned counsel pointed out that immediately after the election for the Legislative Assembly is over, within two days, the District Collector wrote to the Commissioner of Virudhunagar Municipality for going to Road Over Bridge and that in the revised Land Plan Schedule for the Road Under Bridge, it is stated as to what is required for the Road Over Bridge, is required for Road Under Bridge. However, many of the land owners are ready and willing to surrender their lands without compensation, if a Road Under Bridge is constructed.
66. The learned counsel made his further submissions that the impleading petitioner wrote a letter to the VHSN College questioning them under what authority, the College is surrendering the land for Road Under Bridge, by which, the attitude of the impleading petitioner came to limelight and that the impleading petitioner has no role to play in these writ petitions and his only intention is that his brothers should suffer. Further, it is contended that the Government lands do not require any compensation and ultimately, he concluded that before issuing the notification under Section 15(2) of the Act, Section 8 of the Act should be followed, if not, the opportunity to object, would be taken away.
67. The learned counsel made his further submissions regarding malice in two parts, viz., before and after the issuance of the impugned notification under Section 15(2) of the State Act, contending that upto 10.05.2011, the proposal is only for the construction of a Road Under Bridge, however, suddenly, a decision was taken to go for a Road Over Bridge and that it is not known as to what are all the reasons for such sudden conversion and what are all the materials available with the District Collector in this regard. He further argued that the Land Plan Schedule was not at all available upto 23.06.2011, but, on 04.07.2011, Land Plan Schedule was sent to the District Collector for initiating proceedings and that on 26.12.2011, the Land Plan Schedule was given by gathering the datas from the CAS Consultancy, a private concern, three days before the publication of the impugned notification under Section 15(2) of the State Act and that the typed set of papers filed by the Government would establish the fact that the Land Plan Schedule was hurriedly prepared by a Private Company.
68. The learned counsel also raised a query as to whether the District Collector has satisfaction to initiate the proceedings and that even before the publication of the impugned notification, the Land Plan Schedule was drawn. Before invoking Section 15(2) of the State Act, the District Collector had engaged a private company to prepare the Land Plan Schedule, so as to harass one of the petitioners, viz., the 12th petitioner, the former Member of Legislative Assembly and that the act of malice commenced.
69. It is the specific contention of the learned Counsel that upto 19.07.2011, no final decision had been taken by the Government and the Railways that they would go for Road Over Bridge and that before going for acquisition, a final decision has to be arrived at and there must be a plan for Road Under Bridge also.
70. Further, the learned counsel pleaded that as per G.O.No.236, dated 03.10.2008, 23 projects were announced and out of which, two projects alone were completed and that 20 projects are yet to be commenced and that even though administrative sanction is given for Road Over Bridge, the construction of Road Under Bridge is going at Kovilpatti and that once the Government had decided to go for a particular project, they could not deviate without any material.
71. The learned counsel also added that it is not the case of the Government that the construction of the Road Under Bridge is prohibited in Tamil Nadu and that even at Madurai, there is a project for Road Under Bridge, at Palanganatham and hence, the possibility of Road Under Bridge, is very well available.
72. The learned counsel?s further contention is that after notification under Section 15(2) of the State Act, malice had been developed and that the Government had been silent and not filed any counter affidavit in the Public Interest Litigation filed by the impleading petitioner and that the Government is supporting or instigating the Public Interest Litigant, when interim stay was in operation.
73. For all the above submissions, the learned counsel prayed for allowing the writ petition in W.P(MD)No.2129 of 2012 and for the dismissal of the impleading petition in M.P(MD)No.1 of 2014 in W.P(MD)No.2129 of 2012.
M.P(MD)No.1 of 2014 in W.P(MD)No.2129 of 2012:
74. Mr.S.Masilamani, who appeared in person, (the impleading petitioner herein), sought permission of this Court to make his submissions before this Court and subject to maintainability of the impleading petition, he was permitted to putforth his submissions.
75. He submitted that he filed a Public Interest Litigation before the Division Bench of this Court and it was dismissed, holding that he was not entitled to maintain the same. Claiming himself to be the co-owner of two properties, which were covered by the impugned notification, he submitted that the Road Over Bridge alone is the approved one and that the High Level Committee, which had decided to convert into Road Under Bridge, is an imaginary one and that he is a necessary party to point out the falsehood.
76. He further submitted that on 20.04.2014, the Division Bench of this Court directed to furnish certain minutes of the High Level Committee and the advantages and disadvantages caused, besides the Traffic Committee Resolution for Road Over Bridge as well as Road Under Bridge and thereafter only, the District Collector filed the counter affidavit, wherein it is clearly stated that no such High Level Committee had been constituted and therefore, it is a false one. Further, the impleading petitioner, relying on the letter dated 13.04.2009 filed in the typed set of papers in W.P(MD)No.2129 of 2012 at pages 12 and 13, contended that it was decided to change Road Over Bridge into one of Road Under Bridge. However, no written communication was issued to them. Alleging that the petitioners had manipulated the said letter as a decision of the High Level Committee, he drew attention of this Court to the Cost Estimate, dated 11.06.2009, filed in W.P(MD)No.2129 of 2012, to point out that the word 'cj;njrpf;fg;gl;L' had been used and not 'jPh;khdpf;fg;gl;L' and therefore, he claimed that such a decision of the alleged High Level Committee is a false one.
77. Moreover, he argued that the change of location was already rejected by the Railways, by letter dated 23.07.2010 and that though it is the stand of the petitioners that the Road Under Bridge will incur less acquisition, the impugned notification was issued only for the construction of a Road Over Bridge and that in the letter dated 13.04.2009, written by the Highways, it is mentioned that the Land Plan Schedule, the Rough Cost Estimate and the General Alignment Diary, have already been submitted.
78. He also submitted that the 12th petitioner in W.P(MD)No.2129 of 2012, had suppressed the fact that he was the Minister at the time of passing of the impugned Government Order and that he was one of the Members in the High Level Committee and that since he failed to reveal these facts, the writ petition filed by him, is liable to be dismissed. He further contended that the decision cited by the petitioners, in R.Antony Doss and another v. The State of Tamil Nadu and another reported in 1991-II-MLJ-486, is not applicable to the case on hand, as it is related to Town and Country Planning Act.
79. Regarding the Municipality Resolution, he submitted that the Municipality never passed a resolution for Road Under Bridge in lieu of LC 403 and that though the petitioners stated that on 25.02.2010, the Municipality passed a resolution for Road Under Bridge, but it is not so and that on 09.06.2011, the Municipality passed a resolution for Road Over Bridge. According to him, the District Collector wrote a letter to the Municipality for passing a resolution for Road Over Bridge on 31.05.2011 and immediately, the Municipality passed a resolution for Road Over Bridge in accordance with G.O.Ms.No.236, dated 03.10.2008. He, therefore, argued that the resolution had been passed for Road Over Bridge and the impugned notification had also been issued for construction of a Road Over Bridge and that the Road Under Bridge is an unapproved one and if it is for a Road Under Bridge, the Railway authorities have to publish in the pink book. Therefore, he prayed for the dismissal of the writ petition in W.P(MD)No.2129 of 2012, by rejecting the plea of the petitioners for construction of a Road Under Bridge.
80. In support of his submissions, Mr.S.Masilamani, the impleading petitioner, had placed reliance on the following decisions:
(i) P.Jeya v. Union of India reported in AIR 2005 MADRAS 116.Paragraphs 28 and 34 would run thus:
"28. The big question that is to be solved at the outer periphery of deciding the subject matter is whether the memorandum issued earlier giving expression to the G.O. issued under the authority and in the name of the Governor or any of its ingredients could be superseded by a memorandum of the Government of Pondicherry, as it has been done in the case in hand and whether the same could be sustained in law particularly in the context of the relevant constitutional provisions and the other laws relating to the subject matter. In the above circumstances, is it not amounting to, testifying the validity of the very G.O. issued in the name of the Governor so as to extract the guidelines prescribed in the earlier memorandum and would it not amount to the Government acting by annulling or modifying certain principles of the G.O. by a simple memorandum and whether it is permissible in law and whether it is legal. This Court is of the firm view that a G.O. can have a over- riding effect on a memorandum and not on the vice versa, since a memorandum is an executive instruction without having the legal force as it is in the case of a G.O. regularly issued by the order and in the name of the Governor. Furthermore, once the executive order is issued in the name of the Governor, it cannot be modified or altered or annulled or cancelled by yet another executive order not having been issued in the name of the Governor, and therefore, it is safe to conclude that in the light of the above proposition of law, the very act of superseding the earlier memorandum dated 3.8.1995 by the memorandum impugned herein itself is neither proper nor for any good reason assigned nor based on any principle of law, and therefore, the impugned order since being bereft of legal force nor based on any tangible reason, it is difficult to withhold the same.
***** ***** ***** *****
34. In the given case, Government Order has been passed in exercise of power under Article 162 of the Constitution of India and it is an executive order, which could be issued only in the name of the Governor. The executive order issued in the name of the Governor cannot be modified by another executive order, not being issued in the name of the Governor. Earlier memorandum dated 3.8.1995 giving clarification to the Government Order, thereby treating the male and the female on par with each other has been modified by the second memorandum, which is impugned herein, to the effect that it is the origin of the father and not that of the mother, which could be the criteria for the issuance of the scheduled caste certificate in favour of the children born to the parents of different origin on the relevant date of notifying the order issued by the President of India. Reading the Articles 14 and 15 of the Constitution of India it could be found that genderwise there cannot be any discrimination between the parents of the child praying for the issuance of the scheduled caste certificate and it is the only possibility in this circumstance, regarding the subject matter is to accept the earlier memorandum dated 3.8.1995, which has been passed inconsonance with the Government Order, whereby in the case of persons born after the date of notification of the Presidential Order, the place of residence for the purpose of acquisition of the status, is the place of permanent abode of either of their parents at the time of notification of the Presidential Order, based on which the Scheduled Caste certificate could be issued to their children and in the given case, since the mother has the origin of Union Territory of Pondicherry, which is an admitted fact on the part of the respondents, regardless of the fact that the father on the date of notification of the Presidential Order since being a migrant, which is immaterial and since Articles 14 and 15 of the Constitution of India as above discussed, there cannot be any discrimination among sex, which has been specifically declared under Article 15(1) of the Constitution of India."
(ii) Vitthalrao Mahale v. Statereported in AIR 1984 MADHYA PRADESH 70. Paragraph 6 would run thus:
"6. ..... Even if Shri Choure had given any assurance, the State which is the final authority was not bound by such an assurance. The Supreme Court in M/s.Jit Ram Shiv Kumar v. State of Haryana, AIR 1980 SC 1285 has held that the principle of estoppel was not available against the Government in exercise of legislative, sovereign or executive power. There can be no promissory estoppel against the exercise of legislative power of the State. So also the doctrine cannot be invoked for preventing the Government from acting in discharge of its duty under the law. The Government would not be bound by the act of its officers and agents who act beyond the scope of their authority and a person dealing with the agent of the Government must be held to have notice of the limitation of his authority."
(iii) Goa Foundation v. Konkan Railway Corporation reported in AIR 1992 BOMBAY 471.
(iv) Bhagat Singh v. State of U.P reported in AIR 1999 SUPREME COURT
436.
(v) M.S.Arasa Kumar v. The Government of Tamil Nadu reported in 2013 (1) CTC 533.
(vi) The State of Tamil Nadu v. N.Nagarjuna Chettiar reported in 1998 (1) MLJ 390.
(vii) The State of Tamil Nadu and others v. Ananthi Ammal and othersreported in 1995 (1) SCC 519.
(viii) R.Venkatachalapathy and another v. The State of Tamil Nadu and another reported in 1995(2) MLJ 652.
In reply to all the writ petitions, the following was contended by the State:
81. At the outset, Mr.K.Chellapandian, learned Additional Advocate General appearing for the State in all the writ petitions, opposed the relief sought for by the petitioners and contended that when G.O.Ms.No.236, dated 03.10.2008 was passed, one of the petitioners, namely, the 12th petitioner in W.P(MD)No.2129 of 2012, was a Member of the Legislative Assembly and hence, there could be no malice on the part of the Government.
82. The learned Additional Advocate General further contended that nearly about 67 trains would pass through the LC 403 per day, which necessitated to pass the G.O.Ms.No.236, dated 03.10.2008 and that Virudhunagar Municipality also passed a Resolution No.82, on 25.02.2010 and that the District Revenue Officer was authorised to exercise the powers of the Government under Section 15(2) of the State Act, by virtue of G.O.Ms.No.78 which was published in this regard on 07.09.2010 and accordingly, the objections were called for and that after receiving the same, the enquiry had been conducted and the same is now under consideration and a final decision has not been taken. He further argued that the decision had been taken by the Railway as well as the Government after analysing the pros and cons of the issue, including the interest of the public at large, Government Hospital and all Departments.
83. Referring to the counter affidavit filed by the Railways in W.P(MD)No.2190 of 2012, the learned Additional Advocate General contended that the Railways and the Municipality considered the interest of the public regarding the allegation of malice. According to him, in order to circumvent the personal inconvenience of an individual, the project had been delayed for a six long years without implementation, purely detrimental to the public interest. He further added that there was no proposal to acquire the lands under the Land Acquisition Act, (since repealed), but, it is only under the State Act. Ultimately, he concluded that all the writ petitions are liable to be rejected for the reason that they are premature.
84. Regarding the competency of the District Revenue Officer, he argued that G.O.Ms.No.206, Highways (HN2) Department, dated 29.09.2003, was issued authorising the District Collector to exercise the power vested under Section 15(2) of the State Act and the said powers had been delegated to the District Revenue Officer, by virtue of G.O.Ms.No.78, dated 22.06.2011.
85. Insofar as the application of the Central Act, the learned Additional Advocate General contended that it could not be stated that since the new Central Act had come into force, the notification issued under Section 15(2) of the State Act, itself is null and void.
86. In support of his submissions, the learned Additional Advocate General, placed reliance on the following decisions:
(i) Avishek Goenka v. Union of India and another reported in 2012 (4) SCALE 602. Paragraph 20 reads as follows:
"20. This Court in the case of Hira Tikoo V. Union Territory of Chandigarh (2004)6 SCC 765, while dealing with the provisions of town planning and the land allotted to the allottees, upon which the allottees had made full payment, held that such allotment was found to be contravening other statutory provisions and the allotted area was situated under the reserved forest land and land in periphery of 900 meters of Air Force Base. The Court held that there was no vested right and public welfare should prevail as the highest law. Thus, this Court, while relying upon the maxim "salus populi est suprema lex", modified the order of the High Court holding that the allottees had no vested right and the land forming part of the forest area could not be taken away for other purposes. Reference can also be made to the judgment of this Court in Friends Colony Development Committee V. State of Orissa, AIR 2005 SC 1, where this Court, while referring to construction activity violative of the Regulations and control orders, held that the Regulations made under Orissa Development Authorities Act, 1982 may meddle with private rights but still they cannot be termed arbitrary or unreasonable. The private interest would stand subordinate to public good."
(ii) Md. Murtaza v. State of Assam reported in 2012 AIR SCW 189. Paragraphs 7 and 13 are as follows:
"7. Ordinarily everywhere in the world wholesale markets are situated at the outskirts or outside the city limits. No doubt, the shifting of the shops of the wholesalers will cause some hardships to some individuals, but it is well settled that public interest prevails over the private interests. Thus, in Friends Colony Development Committee v. State of Orissa, AIR 2005 SC 1 (vide para 22) this Court observed:
"The private interest stands subordinated to the public good."
***** ***** *****
13. It must be remembered that certain matters are by their very nature such as had better be left to the administrative authorities instead of Courts themselves seeking to substitute their own views and perceptions as to what is the best solution to the problem. The present is clearly an instance where this Court should not interfere with the steps taken by the respondents to resolve a pressing problem. In matters of policy the Courts have a limited role and it should only interfere with the same when it is clearly illegal. That clearly is not the case here. The impugned action is a salutary step for undoing a mischief, which was crying out for redress for a long time, and it is not illegal."
(iii) Union of India v. Kushala Shetty and others reported in (2011) 12 Supreme Court Cases 69. Paragraphs 26 and 28 are as follows:
"26. A somewhat similar question was considered in Girias Investment (P) Ltd., V. State of Karnataka, (2008)7 SCC 53. In that case, the acquisition of the land under the Karnataka Industrial Areas Development Act, 1966 was challenged on various grounds including the one that the acquisition was vitiated due to mala fides. While rejecting the plea of mala fides, the Court referred to S.R.Venkataraman V. Union of India, (1979)2 SCC 491: 1979 SCC (L&S)216; State of Punjab V. Gurdial Singh, (1980)2 SCC 471; and Collector V. Raja Ram Jaiswal, (1985)3 SCC 1 and observed : (Girias Investment case, (2008)7 SCC 53, p. 63, para 14)
"14. It is obvious from a reading of the pleadings quoted above that only vague allegations of mala fides have been levelled and that too without any basis. There can be two ways by which a case of mala fides can be made out; one that the action which is impugned has been taken with the specific object of damaging the interest of the party and, secondly, such action is aimed at helping some party which results in damage to the party alleging mala fides. It would be seen that there is no allegation whatsoever in the pleadings that the case falls within the first category but an inference of mala fides has been sought to be drawn in the course of a vague pleading that the change has been made to help certain important persons who would have lost their land under the original acquisition. These allegations have been replied to in the paragraph quoted above and reveal that the land which had been denotified belonged to those who had absolutely no position or power. In this view of the matter, the judgments cited by Mr.Dave have absolutely no bearing on the facts of the case."
***** ***** *****
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 highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for the 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 the rarest of rare cases, 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 has any violation of mandate of the 1956 Act been established nor has the charge of malice in fact been proved. Therefore, the order under challenged cannot be sustained."
(iv) B.Ramamoorthy v. The Project Director, National Highways Authority of India reported in 2012 (1) CWC 274. Paragraphs 23 and 30 are extracted hereunder:
"23. As rightly contended by the learned Senior Counsel for the Respondent NHAI, this Court in its judgments in (a) Shri Andal Alagar Kalyana Mandapam Private Limited v. Union of India, 2007(7) MLJ 1021; and (b) Krishnaveni and others v. Union of India, 2007(6) MLJ 935; and the Honourable Supreme Court in Union of India V. Dr.Kushala Shetty and Others, C.A.Nos.2866-2880 of 2011 (decided on 21.2.2011) held that the findings of the expert body in technical and scientific matter would not ordinarily be interfered with by the Courts, while exercising its power under Article 226 of the Constitution of India. In this regard, the relevant paras from the aforesaid judgments are extracted hereunder:
(a) Shri Andal Alagar Kalyana Mandapam Private Limited v. Union of India, 2007 (7) MLJ 1021;
"53. ....... Therefore, the Courts would do well to keep their hands off, when experts form an opinion. The restraint to be exercised in such cases, is aptly stated by Justice V.R.KRISHNA IYER in Dr.Jagadish Saran and Others v. Union of India, 1980 (2) SCC 768, in the following words:
"Judges should not rush in where specialists fear to tread......... To doubt is not enough to demolish.""
(b) Krishnaveni and others V. Union of India,2007(6) MLJ 935;
"23. The Petitioners sought to challenge the veracity and correctness of the detailed finalized plan of National Highway Authority of India, in my view, the said submission is devoid of merits. The findings of expert bodies in technical and scientific matters would not ordinarily be interfered with by this Court in exercise of their power under Article 226 of the Constitution, followed Akil Bharat Goseva Sangh V. State of Andhra Pradesh, 2006(4) SCC 162 wherein in Para-59, it was held thus:
"59. The Appellant sought to challenge the veracity and correctness of the figures given in the report of the Central Government as well as in the quinquennial census. In our view, this submission is devoid of merit. It is now well settled by various decisions of this Court that the findings of expert bodies in technical and scientific matters would not ordinarily be interfered with by the Courts in exercise of their power under Article 226 of the constitution or by this Court under Article 136 or 32 of the Constitution."
(c) Union of India V. Dr.Kushala Shetty and others,in C.A.Nos.2866-2880 of 2011 (decided on 21.02.2011):
"24. 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 Highways. The projects involving construction of new highways and widening and development of the existing highways, which were 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, the particular project, if it is found to be exfacie 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."
In these circumstances, the Writ Petitions in W.P.Nos.5499 & 12952 of 2011 are liable to be dismissed and accordingly the same are dismissed."
(v) Atlas Cycle Industries Ltd., v. State of Haryana reported in (1979) 2 Supreme Court Cases 196.
(vi) Satish v. State reported in AIR 1979 MADRAS 246. Paragraph 28 would run thus:
"28. In W.P.No.321 of 1978 one Mr.R.R.Dalavai, claiming to be the secretary of an Addict free society movement, has impleaded himself as the second respondent. One of the contentions raised by him is that the amended rules framed in G.O.Ms.3495 Home dated 31.12.1977 which have been impugned in the writ petition have not come into force; that the Government order amending the rules is still in its embargo and has not attained any statutory force, that the amended rules will come into force only when they have been placed before the Legislature and approval obtained under S.54(3) of the Prohibition Act, 1937, and that, therefore, the writ petition should be dismissed as premature. We are not inclined to agree with the above contention. The impugned Government Order says that the amendment shall come into force on the 1st of Jan.1978. Sec.54(3) says that all rules made under this Act shall, as soon as possible after they are made, be placed on the table of both the Houses of the Legislature and shall be subject to such modification by way of amendment or repeal as the Legislative Assembly may make within fourteen days on which the House actually sits either in the same session or in more than one session. Sec.54(3) does not say that till the rules are approved by both the Houses of Legislature, they are not effective. On the contrary, Sec.55(5) says that all rules made and notifications issued under the Act shall be published in the Official Gazette and upon such publication, shall have effect as if enacted in this Act. Admittedly the rules have been published in the Official Gazette (extraordinary) dated 1-1- 1978. Therefore, it is not possible to say that the rules have not come into force as they have not got the approval of both the Houses of Legislature. In our view, the effect of S.54(3) is that all rules made under the Act by the rule making authority shall be placed on the table of both the Houses of Legislature and shall be subject to such modification as the Legislative Assembly may make within a particular period. That provision cannot in our view postpone the operation or enforcement of the rules until after the legislative approval of the rules as made by the rule making authority. Hence, the above contention cannot be accepted as tenable and the writ petition cannot be dismissed merely on the ground that the rules have not come into force."
(vii) Jayaraman v. State of Tamil Nadu reported in 2014 (1) CWC 635. Paragraph 29 reads as follows:
"29. It could be seen that in R.Kumar's case, though a specific argument has been advanced by the Petitioner therein, that unless a Notification is issued under Section 8 of the Tamil Nadu Highways Act, 2001, acquisition, by issuing a Notice under Section 15(1) of the Act cannot be made, the said argument, has been negatived by the Hon'ble Division Bench."
87. In conclusion, the learned Additional Advocate General submitted that there is no political malice at all in the cases on hand and that even though the project had been initiated in the year 2008 (started in the year 2007), till today, it is not yet commenced, that public interest must prevail over private interest, the delegation of power to the District Revenue Officer is as per law and therefore, he prayed for the dismissal of all the writ petitions.
W.P(MD)No.2129 of 2012:
88. Mr.M.Ajmal Khan, learned Senior Counsel appearing for the 10th respondent in W.P(MD)No.2129 of 2012, submitted that the 10th respondent herein is a Member of the Legislative Assembly representing Virudhunagar Legislative Constituency and that he got impleaded in this writ petition to safeguard the public interest. He further contended that the issue involved herein, is whether the State is entitled to construct a Road Over Bridge or bound to construct a Road Under Bridge. It is further contended that G.O.Ms.No.236, dated 03.10.2008, came to be issued in the year 2008, based on the expertise report and that it is the policy decision of the Government to construct a Road Over Bridge and that the conversion into a Road Under Bridge from that of a Road Over Bridge by a Committee, is nothing but an abuse of power and that is not correct to state that the policy decision had been changed.
89. The learned Senior Counsel also argued that on 26.08.2009, the 12th petitioner alone addressed a letter to the General Manager, Southern Railway, for construction of a Road Over Bridge. Regarding the plea of the petitioners that only Road Under Bridge, is feasible, the decision is purely prerogative of the Government and it is for the competent authority to decide, he contended.
90. In regard to the contention of the petitioners that before issuance of notification under Section 15(2) of the State Act, the State is required to issue notification under Section 8 of the Act, the learned Senior Counsel appearing for the 10th respondent submitted that the notice under Section 8 of the State Act will not hold good and therefore, the plea of the petitioners in this regard, is liable to be rejected.
91. Insofar as the Doctrine of Repugnancy as put forth on the side of the petitioners, the learned Senior Counsel appearing for the 10th respondent, argued that the Central Act is to provide for acquisition of lands for certain projects and for providing compensation for land owners, as found in Entry 42 of the Concurrent List, whereas the State Act provides for construction, maintenance and development of the Highways as found in Entry 13 of the State List and that the State Act had been enacted only under Entry 13 of the Second List and therefore, both the Central Act as well as the State Act did not operate in the same field and that the question of repugnancy will not arise at all. He further pleaded that what is under challenge is only the notification issued under Section 15(2) of the State Act, and not the vires of the constitutional validity of the State Act.
92.In reply to the contention of Mr.R.Viduthalai, learned Senior Counsel, that some of the provisions under the old Act, viz., Land Acquisition Act, 1894, are incorporated in the State Act and on such repealing of the old Act of 1894, the State Act would also automatically get repealed and therefore, the State Act is repealed on the enactment of the new Central Act, Mr.M.Ajmal Khan, learned Senior Counsel appearing for the 10th respondent submitted that if the old Act is repealed, the incorporation made by referring the provisions of the Old Act in the New Act, is not repealed, when there is a general reference, but no specific mentioning of the old Act.
93. According to him, the writ petition is not maintainable, for the reason, only the Road Over Bridge is feasible for construction and not the Road Under Bridge. Therefore, he prayed for the dismissal of the writ petition.
94. In support of his submissions, the learned Senior Counsel placed reliance on the following decisions:
(i) State of U.P v. Chaudhari Ran Beer Singh reported in (2008) 5 Supreme Court Cases 550. Paragraph 13 reads as follows:
"13. Cabinet's decision was taken nearly eight years back and appears to be operative. That being so there is no scope for directing reconsideration as was done in Ram Milan case, though learned counsel for the respondents prayed that such a direction should be given. As rightly contended by learned counsel for the State, in matters of policy decisions, the scope of interference is extremely limited. The policy decision must be left to the Government as it alone can decide which policy should be adopted after considering all relevant aspects from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown, courts will have no occasion to interfere and the court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the court cannot interfere even if a second view is possible from that of the Government."
(ii) Bajaj Hindustan Limited v. Sir Shadi Lal Enterprises Limited reported in (2011) 1 Supreme Court Cases 640. Paragraphs 40, 41, 45 and 46 are extracted hereunder:
"40. Economic and fiscal regulatory measures are a field where Judges should encroach upon very warily as Judges are not experts in these matters. The impugned policy parameters were fixed by experts in the Central Government, and it is not ordinarily open to this Court to sit in appeal over the decisions of these experts. We have not been shown any violation of law in the impugned notification or press note.
41. The power to lay policy by executive decisions or by legislation includes power to withdraw the same unless it is by mala fide exercise of power, or the decision or action taken is in abuse of power. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The court leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is settled law that the court gives a large leeway to the executive and the legislature. Granting licences for import or export is an executive or legislative policy. The Government would take diverse factors for formulating the policy in the overall larger interest of the economy of the country. When the Government is satisfied that change in the policy was necessary in the public interest it would be entitled to revise the policy and lay down a new policy. ***** ***** *****
45. In our opinion there should be judicial restraint in fiscal and economic regulatory measures. The State should not be hampered by the Court in such measures unless they are clearly illegal or unconstitutional. All administrative decisions in the economic and social spheres are essentially ad hoc and experimental. Since economic matters are extremely complicated this inevitably entails special treatment for distinct social phenomena. The State must therefore be left with wide latitude in devising ways and means of imposing fiscal regulatory measures, and the Court should not, unless compelled by the statute or by the Constitution, encroach into this field.
46. In our opinion, it will make no difference whether the policy has been framed by the legislature or the executive and in either case there should be judicial restraint. The Court can invalidate an executive policy only when it is clearly violative of some provisions of the statute or Constitution or is shockingly arbitrary but not otherwise."
(iii)The unreported judgment of Bombay High Court in Shri Pradeep Chandrakant Indulkar and another v. The Municipal Corporation of the City of Thane, through the Commissioner [Public Interest Litigation No.20 of 2007, decided on 20.09.2007]. Paragraph 22 would run thus:
"22. Challenge raised by the petitioners is to a policy decision. The principles which should guide the courts while dealing with a challenge to the policy decision have been laid down by the Supreme Court in several cases. Policy decisions are taken after obtaining expert's advice. They are preceded by due deliberation. Unless they are opposed to law and smack of malafides, courts would be slow in interfering with them.
23. In Narmada Bachao Andolan v. Union of India, JT 2000 (Suppl. 2) SC 6, the Supreme Court has, while dealing with PIL challenging a policy decision observed as under :
?In respect of public projects and policies which are initiated by the Government, the Courts should not become an approving authority. Normally such decisions are taken by the Government after due care and consideration. In a democracy, welfare of the people at large, and not merely of a small section of the society, has to be the concern of a responsible Government. If a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in public interest to require the Court to go into and investigate those area which are the functions of the Executive. For any project which is approved after due deliberation, the Court should refrain from being asked to review the decision just because a petitioner in filing a PIL, alleges that such a decision should not have been taken because an opposite view against the undertaking of the project, which view may have been considered by the Government, is possible. When two or more options or views are possible and after considering them the Government takes a policy decision, it is then not the function of the Court to go into the matter afreshly and, in a way, sit in appeal over such a policy decision.??
(iv) P.Kathirvel v. Government of India and others reported in CDJ 2007 MHC 4077. Paragraph 10 is reproduced hereunder:
"10. In view of the above said facts and circumstances of the case, we are of the considered view that it is not correct to state that the State Government did not consider the non-feasibility report incorporated in "The Traffic Operational and Management Plan for Tuticorin" submitted to the State Government by the Pallavan Transport Consultancy Services Limited, Chennai. Moreover, when executive policy decisions are involved, the Courts in exercise of their power of judicial review should not ordinarily interfere with such policy decisions of the executive, unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness. In support of the above said proposition, reference can be made to the judgments of the Honourable Apex Court in "Ugar Sugar Works Ltd. Versus Delhi Administration and others" [2001(3) SCC 635] and in "Netai Bag and Others v. State of West Bengal and others" [2000(8) SCC 262]. The attention of this Court is drawn to the unreported judgment of a Division Bench of this Court made in "The Southern Railway, rep. by its Chairman, Chennai versus S.Ponnusamy and others" (Writ Appeal No.2271 of 2000), wherein following the observations made by the Honourable Supreme Court in the judgments cited supra, the Division Bench observed as follows:
"There are several decisions of the Hon'ble Supreme Court emphasizing similar views and it is not necessary to burden this judgment by referring to all such decisions. It can be only reiterated that it is a well settled principle of law that while dealing with such matters, the Courts should not interfere with the conclusion of the authorities based on technical and other assessment merely because in the opinion of the Court, some other course of action would be more beneficial and the Courts should desist from such interference, unless the Courts come to the conclusion that the decision of the administrative authority is perverse and arbitrary and no reasonable man of ordinary prudence could have come to such a conclusion."
(v) Southern Railway v. S.Ponnusamy reported in (2007) 3 MLJ 154. Paragraph 18 would read thus:
?18. There are several decisions of the Hon'ble Supreme Court emphasising similar views and it is not necessary to burden this judgment by referring to all such decisions. It can be only reiterated that it is a well settled principle of law that while dealing with such matters, the Courts should not interfere with the conclusion of the authorities based on technical and other assessment merely because in the opinion of the Court, some other course of action would be more beneficial and the Courts should desist from such interference, unless the Courts come to the conclusion that the decision of the administrative authority is perverse and arbitrary and no reasonable man of ordinary prudence could have come to such a conclusion.? (emphasis added.)
(vi) Union of India v. Kushala Shetty and others reported in (2011) 12 Supreme Court Cases 69. Paragraphs 28 and 29 are reproduced hereunder:
"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 highways. The projects involving construction of new highways and widening 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 the rarest of rare cases, 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 has any violation of mandate of the 1956 Act been established nor has the charge of malice in fact been proved. Therefore, the order under challenged cannot be sustained.
29. In the result, the appeals are allowed, the impugned judgment is set aside and the order passed by the learned Single Judge dismissing the objections filed by the respondents is restored."
(vii) Union of India and others v. Kannadapara Sanghatanegala Okkuta & Kannadigara reported in (2002) 10 Supreme Court Cases 226. Paragraph 5 would read as under:
"5. We do not find any basis for the High Court coming to the conclusion that the decision of the Union Cabinet was vitiated on account of legal mala fides. Merely because an administrative decision has been taken to locate the headquarters at Bangalore, which decision is subsequently altered by the same authority, namely, the Union Cabinet, cannot lead one to the conclusion that there has been legal mala fides. Why the headquarters should be at Hubli and not at Bangalore, is not for the court to decide. There are various factors which have to be taken into consideration when a decision like this has to be arrived at. Assuming that the decision so taken is a political one, it cannot possibly give rise to a challenge on the ground of legal mala fides. A political decision, if taken by a competent authority in accordance with law, cannot per se be regarded as mala fide. In any case, there is nothing on the record to show that the present decision was motivated by political consideration. The observation of the High Court that there has been a change in the decision because there was a change of the Government and a different political party had come into power, is not supported by any basis. That the court will not interfere in questions of policy decision is clearly brought out by the following passage from a decision of this Court in Delhi Science Forum v. Union of India [(1996) 2 SCC 405], when at p.413, it was observed as follows: (SCC p. 413, para 7) ?7. What has been said in respect of legislations is applicable even in respect of policies which have been adopted by the Parliament. They cannot be tested in Court of Law. The courts cannot express their opinion as to whether at a particular juncture or under a particular situation prevailing in the country any such national policy should have been adopted or not. There may be views and views, opinions and opinions which may be shared and believed by citizens of the country including the representatives of the people in the Parliament. But that has to be sorted out in the Parliament which has to approve such policies. Privatization is a fundamental concept underlying the questions about the power to make economic decisions. What should be the role of the State in the economic development of the nation? How the resources of the country shall be used? How the goals fixed shall be attained? What are to be the safeguards to prevent the abuse of the economic power? What is the mechanism of accountability to ensure that the decision regarding Privatization is in public interest? All these questions have to be answered by a vigilant Parliament. Courts have their limitations because these issues rest with the policy makers for the nation. No direction can be given or is expected from the courts unless while implementing such policies, there is violation or infringement of any of the Constitutional or statutory provision. The new Telecom Policy was placed before the Parliament and it shall be deemed that Parliament has approved the same. This Court cannot review and examine as to whether said policy should have been adopted. Of course, whether there is any legal or Constitutional bar in adopting such policy can certainly be examined by the court.??
(viii) Jasbir Singh Chhabra and others v. State of Punjab and others reported in (2010) 4 Supreme Court Cases 192. Paragraphs 34 and 35 are as follows:
"34. It is trite to say that while exercising power of judicial review, the superior courts should not readily accept the charge of malus animus laid against the State and its functionaries. The burden to prove the charge of mala fides is always on the person who moves the court for invalidation of the action of the State and/or its agencies and instrumentalities on the ground that the same is vitiated due to mala fides and the courts should resist the temptation of drawing dubious inferences of mala fides or bad faith on the basis of vague and bald allegations or inchoate pleadings. In such cases, wisdom would demand that the court should insist upon furnishing of some tangible evidence by the petitioner in support of his/her allegations.
35. It must always be remembered that in a democratic polity like ours, the functions of the Government are carried out by different individuals at different levels. The issues and policy matters which are required to be decided by the Government are dealt with by several functionaries some of whom may record notings on the files favouring a particular person or group of persons. Someone may suggest a particular line of action, which may not be conducive to public interest and others may suggest adoption of a different mode in larger public interest. However, the final decision is required to be taken by the designated authority keeping in view the larger public interest. The notings recorded in the files cannot be made basis for recording a finding that the ultimate decision taken by the Government is tainted by mala fides or is influenced by extraneous considerations. The Court is duty-bound to carefully take note of the same. In this context, reference can usefully be made to the decision of the Constitution Bench in E.P.Royappa v. State of T.N. [(1974) 4 SCC 3 : 1974 SCC (L&S) 165]. In that case, the petitioner, who was at one time holding the post of Chief Secretary of the State, questioned the decision of the Government to post him as an officer on special duty. One of the grounds on which he attacked the decision of the Government was that the Chief Minister of the State, Shri K.Karunanidhi was ill-disposed against him."
Accordingly, it is contended by Mr.Ajmalkhan, the learned Senior Counsel for the 10th respondent that the decision taken by the Committee based on the letter of the Divisional Engineer, cannot be construed as a policy decision of the Government and mala fides cannot be attributed for making such suggestions and relying upon the following judgments contended that the repealing of the Old Acquisition Act would not affect state Act:
(ix) Dhampur Sugar (Kashipur) Ltd., v. State of Uttaranchal reported in (2007) 8 Supreme Court Cases 418. Paragraphs 82 and 83 are usefully referred to hereunder:
"82. But as already discussed earlier, a court of law is not expected to propel into "the unchartered ocean" of government policies. Once it is held that the Government has power to frame and reframe, change and rechange, adjust and readjust policy, the said action cannot be declared illegal, arbitrary or ultra vires the provisions of the Constitution only on the ground that the earlier policy had been given up, changed or not adhered to. It also cannot be attacked on the plea that the earlier policy was better and suited to the prevailing situation.
83. Allegations of mala fide are serious in nature and they essentially raise a question of fact. It is, therefore, necessary for the person making such allegations to supply full particulars in the petition. If sufficient averments and requisite materials are not on record, the court would not make "fishing" or roving inquiry. Mere assertion, vague averment or bald statement is not enough to hold the action to be mala fide. It must be demonstrated by facts. Moreover, the burden of proving mala fide is on the person levelling such allegations and the burden is "very heavy" (vide E.P.Royappa v. State of T.N. [(1974) 4 SCC 3 : 1974 SCC (L&S) 165 : (1974) 2 SCR 348]). The charge of mala fide is more easily made than made out. As stated by Krishna Iyer, J. in Gulam Mustafa v. State of Maharashtra [(1976) 1 SCC 800 : AIR 1977 SC 448] it is the last refuge of a losing litigant (see also Ajit Kumar Nag v. GM (PJ), Indian Oil Corporation [(2005) 7 SCC 764 : 2005 SCC (L&S) 1020]. In the case on hand, except alleging that the policy was altered by the Government, to extend the benefit to Respondent 4, no material whatsoever has been placed on record by the appellant. We are, therefore, unable to uphold the contention of the learned counsel that the impugned action is mala fide or malicious."
(x) Jayaraman v. State of Tamil Nadu reported in 2014 (1) CWC 635. Paragraphs 29, 36, 37, 46 and 47 are extracted hereunder for ready reference:
"29. It could be seen that in R.Kumar's case, though a specific argument has been advanced by the Petitioner therein, that unless a Notification is issued under Section 8 of the Tamil Nadu Highways Act, 2001, acquisition, by issuing a Notice under Section 15(1) of the Act cannot be made, the said argument, has been negatived by the Hon'ble Division Bench. ***** ***** *****
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 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 highways 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, all acts can be done by the Competent Authorities, which includes acquisition of lands also.
37. The contention of the Petitioner is something like, "putting the cart before the Horse". The expression in Section 15 of the Act, "For the purpose of any highway", should be read, along with other Sections of the Act. In view of the detailed discussion and decision in R.Kumar's case, I am of the view that the issue is no more res integra. However, the same issue has been once again raised in CeeDeeYes's case, and held in favour of the land owners. The relevant discussion and decision in the Judgment of the Hon'ble Mr.Justice A.Kulasekaran, in W.P.No.18050 & 18051 of 2005, dated 9.8.2006 and confirmed by the Hon'ble Division Bench, in R.Kumar and others v. State of Tamil Nadu, rep. by its Secretary to Government, Highways Department, Fort St. George and others, 2006 (4) CTC 640, have not been highlighted by the Respondents in CeeDeeYes's case.
***** ***** ***** ***** ***** *****
46. Hon'ble Mr.Justice A.Kulasekaran in W.P.No.18050 & 18051 of 2005, dated 9.8.2006, while considering, as to whether, requirement under Section 8 of the Tamil Nadu Highways Act, 2001, has to be followed, for initiating any proceedings, under Section 15(2) of the Act, has categorically rejected the same and the said decision has been confirmed in Appeal in R.Kumar's case. When the Hon'ble Division Bench, has rejected the specific challenge, in my humble opinion, it is the law declared by this Court. As rightly contended by Mr.T.N.Rajagopalan, learned Special Government Pleader, the said aspect, has not been properly highlighted by the Respondents, in CeeDeeYes's case.
47. With great respect to the learned Judge, who decided CeeDeeYes's case, I am of the view that R.Kumar's case, has been decided, the issue, directly and substantially and hence, there is no need for any reference. Had the Respondents in CeeDeeYes's case properly highlighted the dictum of this Court in R.Kumar and others v. State of Tamil Nadu, rep. by its Secretary to Government, Highways Department, Fort St. George and others, 2006 (4) CTC 640, things would have been different."
(xi) R.Kumar and others v. State of Tamil Nadu reported in2006 (4) CTC
640.
(xii) Association of Natural Gas v. Union of India reported in AIR 2004 SUPREME COURT 2647. Paragraphs 13 and 15 are extracted hereunder:
"13. The Constitution of India delineates the contours of the powers enjoyed by the State Legislature and the Parliament in respect of various subjects enumerated in the Seventh Schedule. The rules relating to distribution of powers are to be gathered from the various provisions contained in Part XI and the legislative heads mentioned in the three lists of the Schedule. The legislative power of both Union and State Legislatures are given in precise terms. Entries in the lists are themselves not powers of legislation, but fields of legislation. However, an Entry in one list cannot be so interpreted as to make it cancel or obliterate another entry or make another entry meaningless. In case of apparent conflict, it is the duty of the Court to iron out the crease and avoid conflict by reconciling the conflict. If any entry overlaps or is in apparent conflict with another entry, every attempt shall be made to harmonise the same. ***** ***** ******
15. Although Parliament cannot legislate on any of the Entries in the State List, it may do so incidentally while essentially dealing with the subject coming within the purview of the Entry in the Union List. Conversely, State Legislature also while making legislation may incidentally trench upon the subject covered in the Union List. Such incidental encroachment in either event need not make the legislation ultra vires of the Constitution. The doctrine of pith and substance is sometimes invoked to find out the nature and content of the legislation. However, when there is an irreconcilable conflict between the two legislations, the Central legislation shall prevail. However, every attempt would be made to reconcile the conflict."
(xiii) State of Kerala v. Mar Appraem Kuri Co. Ltd. reported in (2012) 7 Supreme Court Cases 106. Paragraphs 44 to 49 and 64 are as follows:
?44. Under clause (1) of Article 254, a general rule is laid down to say that the Union law shall prevail where the State law is repugnant to it. The question of repugnancy arises only with respect to the subjects enumerated in the Concurrent List as both the Parliament and the State Legislatures have concurrent powers to legislate over the subject-matter in that List. In such cases, at times, conflict arises.
45. Clause (1) of Article 254 states that if a State law, relating to a concurrent subject, is "repugnant" to a Union law, relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void.
Thus, Article 254(1) also gives supremacy to the law made by Parliament, which Parliament is competent to enact. In case of repugnancy, the State Legislation would be void only to the extent of repugnancy. If there is no repugnancy between the two laws, there is no question of application of Article 254(1) and both the Acts would prevail. Thus, Article 254 is attracted only when Legislations covering the same matter in List III made by the Centre and by the State operate on that subject; both of them (Parliament and the State Legislatures) being competent to enact laws with respect to the subject in List III.
46. In the present case, Entry 7 of List III in the Seventh Schedule deals with the subject of "Contracts". It also covers special contracts. Chitties are special contracts. Thus, the Parliament and the State Legislatures are competent to enact a law with respect to such contracts.
47. The question of repugnancy between the Parliamentary Legislation and State Legislation arises in two ways. First, where the Legislations, though enacted with respect to matters in their allotted spheres, overlap and conflict. Second, where the two Legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, the Parliamentary Legislation will predominate, in the first, by virtue of non- obstante clause in Article 246(1); in the second, by reason of Article 254(1).
48. Article 254(2) deals with a situation where the State Legislation having been reserved and having obtained President??s assent, prevails in that State; this again is subject to the proviso that Parliament can again bring a legislation to override even such State Legislation.
49. In clause (1) of Article 254 the significant words used are "provision of a law made by the Legislature of a State", "any provision of a law made by Parliament which Parliament is competent to enact", "the law made by Parliament, whether passed before or after the law made by the Legislature of such State", and "the law made by the Legislature of the State shall, to the extent of repugnancy, be void". Again, clause (2) of Article 254 speaks of "a law made by the Legislature of a State", "an earlier law made by Parliament", and "the law so made by the Legislature of such State". Thus, it is noticeable that throughout Article 254 the emphasis is on law-making by the respective Legislatures.?
(xiv) J.Parthiban and 14 others and State of Tamil Nadu and 2 others reported in 2008-2-L.W. 989. Paragraphs 10,14 and 19 are extracted as under:
"10. We may now refer to the relevant Entries. Entry 29 in List I (Union List) reads as under:
''Airways; aircraft and air navigation; provision of aerodromes; regulation and organisation of air traffic and of aerodromes; provision for aeronautical education and training and regulation of such education and training provided by States and other agencies''.
Entry 24 in List II, (State List) reads:
''Industries subject to the provisions of Entries 7 and 52 of List I."
Entry 42 in List III (Concurrent List) reads:
''42. Acquisition and requisitioning of property. It may be noted here that Entry 33 in List I, Entry 36 in List II and Entry 42 in List III were amended by Section 26 of the Constitution (Seventh Amendment) Act 1956, by which, Entry 33 of List I and Entry 36 of List II were deleted and Entry 42 in List III was amended to read as set out hereinabove. Entry 33 in List I and Entry 36 in List II conferred legislative power on the Union and the States respectively for acquisition or requisitioning of property for its own purpose. Constitution (Seventh Amendment) Act, 1956, which made the aforementioned amendment was designed to clear the ambiguity about the power of acquisition and requisitioning of property being not a power incidental to any of the legislative powers but an independent power by itself. The object behind the amendment has been thus explained:
''The existence of three entries in the legislative lists (33 of List I, 36 of List II and 42 of List III) relating to the essentially single subject of acquisition and requisitioning of property by the government gives rise to unnecessary technical difficulties in legislation. In order to avoid these difficulties and simplify the constitutional position, it is proposed to omit the entries in the Union and State Lists and replace the entry in the concurrent list by a comprehensive entry covering the whole subject. (see Statement of Objects and Reasons in respect of Constitution (Seventh Amendment) Act, 1956)."
***** ***** ***** *****
14. It is thus a settled position of law that the power of acquisition is an independent power emanating from Entry 42 of List III in the Seventh Schedule of the Constitution and it is not ancillary or incidental to any of the Entries in List I, List II or List III. Entry 29 (List I) does not include power of acquisition and such power of acquisition flows independently from Entry 42 of List III.
***** ***** *****
19. It is clear from the foregoing discussion that the power to acquire land is a separate, distinct and independent power and is not an incident of the power to legislate under other entries. The entries, which deal with airport and acquisition, are entirely different subject matters. Therefore, we do not think it is any longer open to the learned counsel for the petitioners to contend that the impugned acquisition of the land for the expansion of the airport is beyond the competence of the State Legislature."
(xv) Ram Sarup v. Munshi reported inAIR 1963 SUPREME COURT
553.Paragraph 11 would run thus:
"11. The problem here raised is dependent upon the construction which the several provisions which we have set out earlier would bear after the repeal of the Punjab Alienation of Land Act, 1900. One thing is clear and that is that the authority which effected the repeal of the Punjab Alienation of Land Act did not consider that Punjab Act 1 of 1913 had itself to be repealed. We shall now consider the effect of the repeal of the Punjab Alienation of Land Act with reference to each of the provisions:-
(1) Definition of "agricultural land' under S.3(1):
Where the provisions of an Act are incorporated by reference in a later Act the repeal of the earlier Act has, in general, no effect upon the construction or effect of the Act in which its provisions have been incorporated. The effect of incorporation is stated by Brett, L. J., in Clarke v. Bradlaugh, (1881) S QBD 63:
"Where a statute is incorporated, by reference, into a second statute the repeal of the first statute by a third does not affect the second."
In the circumstances, therefore, the repeal of the Punjab Alienation of Land Act of 1900 has no effect on the continued operation of the Preemption Act and the expression 'agricultural land' in the later Act has to be read as if the definition in the Alienation of Land Act had been bodily transposed into it. Section 2 of the Punjab Alienation of Land Act, 1900, as amended by Act 1 of 1907 defined `Land' as follows:
"The expression 'land' means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes sub- servient to agricultural or for pasture, and includes........................... " It is not in dispute that the land concerned in the claim for preemption made in the appeal satisfies this definition."
(xvi) Girnar Traders (3) v. State of Maharashtra reported in (2011) 3 Supreme Court Cases 1.Paragraphs 87 and 89 are reproduced hereunder:
"87.However, since this aspect was argued by the learned counsel appearing for the parties at great length, we will proceed to discuss the merit or otherwise of this contention without prejudice to the above findings and as an alternative plea. These principles have been applied by the courts for a considerable period now. When there is general reference in the Act in question to some earlier Act but there is no specific mention of the provisions of the former Act, then it is clearly considered as legislation by reference. In the case of legislation by reference, the amending laws of the former Act would normally become applicable to the later Act; but, when the provisions of an Act are specifically referred and incorporated in the later statute, then those provisions alone are applicable and the amending provisions of the former Act would not become part of the later Act. This principle is generally called legislation by incorporation. General reference, ordinarily, will imply exclusion of specific reference and this is precisely the fine line of distinction between these two doctrines. Both are referential legislations, one merely by way of reference and the other by incorporation. It, normally, will depend on the language used in the later law and other relevant considerations. While the principle of legislation by incorporation has well defined exceptions, the law enunciated as of now provides for no exceptions to the principle of legislation by reference. Furthermore, despite strict application of doctrine of incorporation, it may still not operate in certain legislations and such legislation may fall within one of the stated exceptions.
***** ******
89. With the development of law, the legislature has adopted the common practice of referring to the provisions of the existing statute while enacting new laws. Reference to an earlier law in the later law could be a simple reference of provisions of earlier statute or a specific reference where the earlier law is made an integral part of the new law, i.e., by incorporation. In the case of legislation by reference, it is fictionally made a part of the later law. We have already noticed that all amendments to the former law, though made subsequent to the enactment of the later law, would ipso facto apply and one finds mention of this particular aspect in Section 8 of the General Clauses Act, 1897. In contrast to such simple reference, legal incidents of legislation by incorporation is that it becomes part of the existing law which implies bodily lifting provisions of one enactment and making them part of another and in such cases subsequent amendments in the incorporated Act could not be treated as part of the incorporating Act."
(xvii) Nagpur Improvement Trust v. Vasantrao reported in (2002) 7 Supreme Court Cases 657. Paragraph 31 would run thus:
"31. We shall now proceed to consider whether the provisions of the Land Acquisition Act, 1894 as modified by the State Acts stand incorporated in the State Acts or whether there is a mere reference or citation of the land Acquisition Act in the State Acts. The law on the subject is well settled. When an earlier Act or certain of its provisions are incorporated by reference into a later Act, the provisions so incorporated become part and parcel of the later Act as if they had been bodily transposed into it. The incorporation of an earlier Act into a later Act is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction of the provisions of the earlier Act into the later. But this must be distinguished from a referential legislation which merely contains a reference or the citation of the provisions of an earlier statute. In a case where a statute is incorporated, by reference, into a second statute, the repeal of the first statute by a third does not affect the second. The later Act alongwith the incorporated provisions of the earlier Act constitute an independent legislation which is not modified or repealed by a modification or repeal of the earlier Act. However, where in later Act there is a mere reference to an earlier Act, the modification, repeal or amendment of the statute that is referred, will also have an effect on the statute in which it is referred. It is equally well settled that the question whether a former statute is merely referred to or cited in a later statute, or whether it is wholly or partially incorporated therein, is a question of construction."
95. By relying upon the above decisions, the learned Senior Counsel appearing for the 10th respondent contended that despite repealing of the old Act, certain provisions would survive because of the incorporation in the new Act, that once a policy decision has been taken and a notification has been effected by the Government, there cannot be any compulsion at the instance of certain private individuals to nullify such policy decision, that there is no repugnancy as the State is well within its powers to issue the notification and therefore, sought for the dismissal of the writ petitions.
The submissions on behalf of the Railways, is as follows:
96. Mr.S.Manohar, learned Counsel for the Railways, placing reliance on the typed set of papers filed by him, contended that both the Road Over Bridge as well as the Road Under Bridge are feasible, however, the Road Over Bridge is more advantage and that the scope of the Railways, is very limited in this matter.
The submissions on behalf of Virudhunagar Municipality is as follows:
97. Mr.N.Dilip Kumar, learned Counsel for Virudhunagar Municipality, had adopted the arguments of Mr.K.Chellapandian, learned Additional Advocate General appearing for the State. Further, he submitted that the LC 403 is the first Level Crossing from Virudhunagar to Thulukkapatti and that on 25.02.2010, by Resolution No.82, it was resolved to construct a Road Over Bridge through an alternative road and thereafter, on 09.06.2011, Resolution No.43 had been passed to construct a Road Under Bridge. He also argued that the Municipality required the service road and that the writ petitions are premature.
98. In reply, Mr.Veera Kathiravan, learned Counsel for the petitioners in W.P(MD)No.2129 of 2012, submitted that the first resolution had been passed by the Municipality in favour of neither a Road Over Bridge nor a Road Under Bridge at Ramamoorthy Road. Drawing the attention of this Court to the letter dated 11.04.2011, addressed to the Revenue Divisional Officer, Aruppukkottai, by the District Collector, Virudhunagar, the learned Counsel submitted that even though in the covering letter, it had been stated as the Road Over Bridge, in the annexure, it had been stated as the Road Under Bridge. He further submitted that in the resolution dated 09.06.2011, the word 'fPH;ghyk;' was deleted by whitener and stated as though it is for a Road Over Bridge. It is his further submission that on 09.06.2011, the Municipality was not informed by the Railways or the Highways Department about the earlier Resolution and that the Resolution from the Municipality is required to fulfil the requirements of Section 3 of the State Act.
99. The learned Counsel also submitted that the Municipality is a separate body and that the State Government is not the Master of the Municipality and it is a constitutional authority under Article 243-P of the Constitution of India and that the first Resolution is pertaining to Road Under Bridge, however, the second Resolution is relating to the Road Over Bridge and that all the Resolutions have to be read together and arrived at a conclusion regarding the stand of the Municipality.
100. At this stage, Mr.R.Viduthalai, learned Senior Counsel appearing for the petitioners in W.P(MD)No.2190 to 2195 of 2012 and 475 of 2013, reiterated his earlier submissions and in particular, on the issue of repugnancy, competency and arbitrariness. He submitted that non-compliance of the requirements under Sections 3 and 8 of the State Act would be in violation of the mandatory and statutory procedures and in the absence of the same, the notification under Section 15(2) of the State Act would not be justified. Further, it is his contention that the decision of the Government to construct a Road Over Bridge was aimed at extraneous consideration and not for the cause of the public and that the writ petitions are not premature, since there is failure to comply with the mandatory requirements before issuing the impugned notification under Section 15(2) of the State Act.
101. In regard to repugnancy, the learned Senior Counsel contended that if the State Act is repugnant, it would be void and inoperative and that the notification issued under Section 15(2) of the State Act, would fall to the ground in the absence of the State Government nullifying the repugnancy by way of an amendment. He further submitted that as on date, the impugned notification under Section 15(2) of the Act falls to the ground, as it had been found place in the entry in the Concurrent list. More particularly, he argued that the Chapter IV of the Tamil Nadu Highways Act, is repugnant to the newly enacted Central Act and hence, to the extent of repugnancy, the provisions in the Chapter IV of the State Act, are void and that as per 7th Schedule to List I, in the Entry 23, the Highways have to be declared as National Highways and that there is separate Entry for Highways in the Union List under which, the National Highways Act had been enacted and therefore, under the only Entry the State Act could be traced, is Entry 42 and hence, there is a repugnancy.
102. Referring to the Jallikattu Case, learned Senior Counsel submitted that as the Tamil Nadu Jallikattu Act, is inconsistent and repugnant to the Prevention of Cruelty Act, it has been declared as null and void and placed reliance on the decision of the Honourable Supreme Court in Animal Welfare Board of India v. A.Nagaraja and others [Civil Appeal No.5387 of 2014 and batch, decided on 07.05.2014].
103. Inasmuch as Doctrine of Incorporation is concerned, Mr.R.Viduthalai, learned Senior Counsel pointed out that certain provisions of the earlier Act are incorporated into the later Act and after such incorporation, in case, the earlier Act is repealed, the later Act remains unaffected. Contending that here, it is only by referential legislation, he once again drew the attention of this court on the decision in Railway Employees' Co-operative Credit Society Limited v. Joint Commissioner of Labour [W.A.No.314 of 2010, decided on 13.11.2013].
104. Further, the learned Senior Counsel, also drew the attention of this Court to the following decisions:
(i) The Secretary to Government v. Josuva Jebakumar reported in 2010 (1) CWC 610. (supra)
(ii) Southern Railway v. S.Ponnusamy reported in (2007) 3 MLJ 154.
Paragraphs 17, 18 and 19 are as follows:
"17. In Ugar Sugar Works Ltd., v. Delhi Administration and Others, AIR 2001 SC 1447 : (2001) 3 SCC 635, it was observed as under in para 18:
"18. The challenge, thus, in effect, is to the executive policy regulating trade in liquor in Delhi. It is well settled that the courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy. In tax and economic regulation cases, there are good reasons for judicial restraint, if not judicial deference, to judgment of the executive. The courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State. "
18. There are several decisions of the Hon'ble Supreme Court emphasising similar views and it is not necessary to burden this judgment by referring to all such decisions. It can be only reiterated that it is a well settled principle of law that while dealing with such matters, the Courts should not interfere with the conclusion of the authorities based on technical and other assessment merely because in the opinion of the Court, some other course of action would be more beneficial and the Courts should desist from such interference, unless the Courts come to the conclusion that the decision of the administrative authority is perverse and arbitrary and no reasonable man of ordinary prudence could have come to such a conclusion.
19. In the present case, the learned single Judge himself has concluded that alignment No.2 and No.5 were two possible alternatives. The Railway authorities decided to opt for alignment No.5 on the basis of the consideration of relevant aspects and it cannot be said that their conclusion was based on consideration of irrelevant materials or perverse and arbitrary requiring Court's interference. In such view of the matter, the learned single Judge should not have interfered with the discretion exercised by the Railway authorities in deciding to proceed with the construction of the railway line by adopting alignment No.5. Such conclusion of the learned single Judge, is, therefore, liable to be interfered with."
(iii) J.Parthiban and 14 others v. State of Tamil Nadu and 2 others reported in 2008-2-L.W. 989. Paragraphs 20 to 25 are extracted hereunder:
"Re.Contention (ii)
20. The contention advanced is that the State Government cannot resort to the T.N. Acquisition Act, as airport is not an industry for the purpose of the said Act. This contention also proceeds on the premise that the airport being a Union subject the State lacks competence to acquire the land. We have already seen that the State Act in question is in pith and substance a law for acquisition under Entry 42 of List III of the 7th Schedule. It can hardly be disputed that the State Government is primarily interested in development of the industries and in order to ensure industrial growth, infrastructural facilities like airport, railways, etc, are vitally important. In the broad sense, the purpose of expansion of the airport is also a State purpose or in other words a general public purpose. In this view also the acquisition in this case must be held to have been validly made.
Re.Contention (iii)
21. The next submission before us is about the failure to obtain prior environmental clearance before initiation of the acquisition proceedings. Reliance is placed on the judgment of the Supreme Court in Karnataka Industrial Areas Development Board -vs- C.Kanchappa, 2006(6) SCC 371. In that case, the Court set aside the direction given by the Karnataka High Court to KIADB to leave a land of one kilometre as a buffer zone from the outer periphery of the village in order to maintain a ''green area'' towards preservation of land for grazing of cattle, agricultural operation, etc. The Court, however, directed that in future, before acquisition of lands for development, the KIADB must properly comprehend the consequence and adverse impact on the environment and that the lands acquired for development do not gravely impair the ecology and environment. The Board was further directed to incorporate the condition of allotment to obtain clearance from the Karnataka State Pollution Control Board before the land is allotted for development. The Court has not issued a general direction that in all the projects the authority is duty bound to obtain prior environmental clearance before initiation of the acquisition proceedings. In fact, para.2 of the Notification dated 14.9.2006 issued by the Ministry of Environment and Forests, Government of India, provides that any project, which is covered by category (A) or category (B) before any construction work, or preparation of land by the project management except for securing the land, prior permission would be obtained. In a similar case, in respect of expansion of Mangalore Airport in the case of Environment Support Group & Others -vs- Union of India, decided on 07.2.2003, the Supreme Court declined to interfere with the order of the Karnataka High Court permitting the authority to proceed with the acquisition of lands, but directed that the Government shall comply with all applicable laws and also with environmental norms in constructing the Airport. Learned senior counsel Mr.V.T.Gopalan, appearing for the Airports Authority of India, as well as Mr.P.Wilson, learned Assistant Solicitor General appearing for the Union of India gave a categorical assurance that no construction activity would commence on the land before obtaining environmental clearance. It is also brought to our notice that an application has already been made to the competent authority for necessary clearance. Re.Contention (iv)
22. The last contention advanced is that the State has no power to acquire the land for rehabilitation of the project affected persons under the State Act, and for acquisition of the rehabilitation purpose, the State must resort to the Land Acquisition Act. The argument is liable to be rejected as Section 3 of the T.N. Acquisition Act empowers the State Government to acquire the land which is required for industrial purpose or for any other purposes in furtherance of the objects of this Act. The rehabilitation of the persons affected by the expansion scheme is in furtherance of the object of the Act, and thus, the State has power to acquire the land needed for the rehabilitation purpose under Section 3 of the T.N. Acquisition Act.
23. It appears that the State has taken a policy decision to allot plots to the householders. A contention is raised before us on behalf of some of the landholders that their houses are not fully constructed due to the Notification and their cases also deserve to be considered on the same footing for allotment of alternative plots. The landholders are free to make a representation in that behalf and if such representation is received, the State will take appropriate decision in that regard in accordance with law. We may mention that W.P.No.36968 of 2007 is filed by the Management of an International School located in an area of nearly 3.54.5 Hectares and having more than 1300 students. Learned Advocate General has assured the Court that if the Management in the said writ petition makes a representation, the State will consider the same for allotment of an alternate site for the school in the nearby areas and will also take appropriate measures to ensure that the academic studies of the students are not affected.
24. In the result, in view of the foregoing discussion, we find absolutely no merit in the challenge raised to the acquisition proceedings initiated by the State Government for expansion of the Chennai Airport and the notices issued under Section 3(2) of the T.N. Acquisition Act, and we hold that the State is entitled to proceed with the acquisition and acquire the land and handover the same to the Airports Authority. Learned Advocate General assured the Court that if the objections are filed on or before 26.04.2008, the District Collector will consider the same on their own merits.
25. The writ petitions are dismissed with the above directions. Consequently, miscellaneous petitions are also dismissed. No costs."
105. Whereas Mr.Veera Kathiravan, learned Counsel contended that the petitioners were not aware as to what is sought to be acquired and what is contemplated before notification under Section 15(2) of the State Act, is an Enquiry and the Road Margins or alignment has to be determined. He raised a query as to whether there is any order or proceedings and what is the extent for the public purpose except the indication of total extent. He added that as per Section 15(2) of the Act, before acquisition of the land, an enquiry as contemplated has to be conducted, after satisfying all the pre- requirements for such an enquiry. However, the said opportunity is deprived to all the petitioners. According to him, the right of the petitioners in giving satisfactory explanation, was deprived by not following the mandatory provisions and it is not known as to what made them to do so and what was the LPS which is prepared for the justified acquisition and what is the basis for LPS to an extent of 2,488 sq. mtrs. He submitted that G.O.Ms.No.236 had dealt with two letters from the Southern Railway which are referred to in the impugned order and the said decision of the Government either for a Road Over Bridge or a Road Under Bridge, was supported by the said two letters and the administrative sanction was not on the basis of the report. He also pointed out that it is also not made clear as to why the Land Plan Schedule and the General Alignment Diary were drawn in the year 2011.
106. Drawing the attention of this Court to the counter affidavit filed by the Government in W.P(MD)No.2129 of 2012, the learned Counsel contended that the Land Plan Schedule for the construction of a Road Over Bridge was sent by the Divisional Engineer (H), NABARD and Rural Roads Division, Paramakudi, by his letter dated 04.07.2011 and hence, the Land Plan Schedule had already been prepared in the year 2011 itself. He further submitted that there are policy decision, executive decision and administrative decision. According to him, the order passed in the year 2008, is only an administrative order and not based on any document. If it had been against the interest of any one of the petitioners, he would have prevented at that time. Further, he submitted that Road Under Bridge had been constructed instead of Road Over Bridge at Kovilpatti so as to ensure minimum damages and the percentage of the damages that would be caused to the 141 items, by the construction of ROB, would be stated as follows:
Demolition Items 100% demolition 17 items 50% to 100% demolition 29 items 25% to 50% demolition 21 items upto 25% demolition 64 items.
107. He further contended that the entire land owners have been opposing for the construction of a Road Over Bridge and that the 10th respondent, the Member of the Legislative Assembly, had not come to this Court with the clean hands, as he is not really an interested person. Also, he submitted that the law is passed only in Entry 13 of Second List and the source of legislation is the concurrent list.
108. The learned counsel also submitted that in the Entry 13 of the State List, it had not been stated as 'including acquisition of property' and once the acquisition of property is the subject matter of law, it is coming under the concurrent list and if the Government thinks that the State Act is repugnant to the Central Act, they have to frame Rules accordingly and if the State Act is not repugnant to the Central Act, then, what is the necessity to pass the Bill so as to amend the Central Act in its application to the State of Tamil Nadu.
109. Insofar as the aspect regarding premature, Mr.Veera Kathiravan replied that in the notification issued under Section 15(2) of the State Act, the Notified Authority has stated that they wanted to acquire the lands for construction of Road Over Bridge without authority and therefore it could not be stated that it is premature and the issuance of notification for construction of Road Over Bridge, would only mean that it had already been decided by the Government to construct a Road Over Bridge. Further, he contended that the order passed by the learned Judge of this Court in Jayaraman v. State of Tamil Nadu reported in 2014 (1) CWC 635, is not binding on this Court.
110. Mr.K.Chellapandian, learned Additional Advocate General in further reply, submitted that there is no repugnancy at all and that the Central Act is having nothing to do with the land acquisition under the Tamil Nadu Highways Act. He further submitted that as per Section 19(6) of the State Act, while determining the quantum, they have to take the guidelines from the Act and therefore, the question of repugnancy will not at all arise in the case on hand.
111. The learned Additional Advocate General also submitted that nearly, 141 items have to be acquired for the construction of a Road Over Bridge and that the interest of the entire district people is more important than that of the interest of the petitioners and that there could be no malice. He contended that only at the instance of one of the petitioners, namely, Ex.MLA, who is the 12th petitioner in W.P(MD)No.2129 of 2012, the Road Over Bridge had been changed into Road Under Bridge, however, no Government Order was passed to that effect and the same was not materialised and hence, all the writ petitions are liable to be dismissed.
112. Mr.M.Ajmal Khan, learned Senior Counsel contended that the argument of repugnancy can be rejected on the ground that the Act itself has not been challenged and so long as the Act is not challenged, they are not entitled to take the ground of repugnancy. In support of the same, he relied on the decision of the Honourable Apex Court in Mahindra and Mahindra Ltd., v. Union of India reported in (1979) 2 Supreme Court Cases 529. Paragraphs 8 and 9 are reproduced hereunder:
"8. The first question that arises for consideration on the preliminary objection of the respondents is as to what is the true scope and ambit of an appeal under Section 55. That section provides inter alia that any person aggrieved by an order made by the Commission under Section 13 may prefer an appeal to this Court on ?one or more of the grounds specified in Section 100 of the Code of Civil Procedure, 1908?. Now at the date when Section 55 was enacted, namely, December 27, 1969, being the date of coming into force of the Act, Section 100 of the Code of Civil Procedure specified three grounds on which a second appeal could be brought to the High Court and one of these grounds was that the decision appealed against was contrary to law. It was sufficient under Section 100 as it stood then that there should be a question of law in order to attract the jurisdiction of the High Court in second appeal and, therefore, if the reference in Section 55 were to the grounds set out in the then existing Section 100, there can be no doubt that an appeal would lie to this Court under Section 55 on a question of law. But subsequent to the enactment of Section 55, Section 100 of the Code of Civil Procedure was substituted by a new section by Section 37 of the Code of Civil Procedure (Amendment) Act, 1976 with effect from February 1, 1977 and the new Section 100 provided that a second appeal shall lie to the High Court only if the High Court is satisfied that the case involves a substantial question of law. The three grounds on which a second appeal could lie under the former Section 100 were abrogated and in their place only one ground was substituted which was a highly stringent ground, namely, that there should be a substantial question of law. This was the new Section 100 which was in force on the date when the present appeal was preferred by the appellant and the argument of the respondents was that the maintainability of the appeal was, therefore, required to be judged by reference to the ground specified in the new Section 100 and the appeal could be entertained only if there was a substantial question of law. The respondents leaned heavily on Section 8(1) of the General Clauses Act, 1897 which provides:
?Where this Act or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re- enacted.?
and contended that the substitution of the new Section 100 amounted to repeal and re-enactment of the former Section 100 and, therefore, on an application of the rule of interpretation enacted in Section 8(1), the reference in Section 55 to Section 100 must be construed as reference to the new Section 100 and the appeal could be maintained only on ground specified in the new Section 100, that is, on a substantial question of law. We do not think this contention is well founded. It ignores the distinction between a mere reference to or citation of one statute in another and an incorporation which in effect means bodily lifting a provision of one enactment and making it a part of another. Where there is mere reference to or citation of one enactment in another without incorporation. Section 8(1) applies and the repeal and re-enactment of the provision referred to or cited has the effect set out in that section and the reference to the provision repealed is required to be construed as reference to the provision as re-enacted. Such was the case in Collector of Customs v. Nathella Sampathu Chetty [(1962) 3 SCR 786 : AIR 1962 SC 316] and New Central Jute Mills Co. Ltd. v. Assistant Collector of Central Excise [(1970) 2 SCC 820 : (1971) 2 SCR 92 : AIR 1971 SC 454]. But where a provision of one statute is incorporated in another, the repeal or amendment of the former does not affect the latter. The effect of incorporation is as if the provision incorporated were written out in the incorporating statute and were a part of it. Legislation by incorporation is a common legislative device employed by the legislature, where the legislature for convenience of drafting incorporates provisions from an existing statute by reference to that statute instead of setting out for itself at length the provisions which it desires to adopt. Once the incorporation is made, the provision incorporated becomes an integral part of the statute in which it is transposed and thereafter there is no need to refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on the incorporation statute. Lord Esher, M.R., while dealing with legislation in incorporation in In re Wood?s Estate [(1886) 31 Ch D 607] pointed out at p. 615:
?If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all.?
Lord Justice Brett, also observed to the same effect in Clarke v. Bradlough [(1881) 8 QBD 63, 69]:
?.? there is a rule of construction that, where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third statute does not affect the second.?
This was the rule applied by the Judicial Committee of the Privy Council in Secretary of State for India in Council v. Hindustan Cooperative Insurance Society Ltd. [58 IA 259]. The Judicial Committee pointed out in this case that the provisions of the Land Acquisition Act, 1894 having been incorporated in the Calcutta Improvement Act, 1911 and become an integral part of it, the subsequent amendment of the Land Acquisition Act, 1894 by the addition of sub-section (2) in Section 26 had no effect on the Calcutta Improvement Act, 1911 and could not be read into it. Sir George Lowndes delivering the opinion of the Judicial Committee observed at p. 267: ?In this country it is accepted that where a statute is incorporated by reference into a second statute, the repeal of the first statute does not affect the second: see the cases collected in Craies on Statute Law, 3rd Edn. pp. 349, 350 ... The independent existence of the two Acts is, therefore, recognised; despite the death of the parent Act, its offspring survives in the incorporating Act.
It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition.?
So also in Ram Sarup v. Munshi [(1963) 3 SCR 858 : AIR 1963 SC 553, it was held by this Court that since the definition of ?agricultural land? in the Punjab Alienation of Land Act, 1900 was bodily incorporated in the Punjab Pre-emption Act, 1913, the repeal of the former Act had no effect on the continued operation of the latter. Rajagopala Ayyangar, J., speaking for the Court observed at p. 868-69 of the Report:
?Where the provisions of an Act are incorporated by reference in a later Act the repeal of the earlier Act has, in general, no effect upon the construction or effect of the Act in which its provisions have been incorporated.
In the circumstances, therefore, the repeal of the Punjab Alienation of Land Act of 1900 has no effect on the continued operation of the Pre-emption Act and the expression ?agricultural land? in the later Act has to be read as if the definition in the Alienation of Land Act, 1900, had been bodily transposed into it.?
The decision of this Court in Bolani Ores Ltd. v. State of Orissa [(1974) 2 SCC 777 : (1975) 2 SCR 138 : AIR 1975 SC 17], also proceeded on the same principle. There the question arose in regard to the interpretation of Section 2(c) of the Bihar and Orissa Motor Vehicles Taxation Act, 1930 (hereinafter referred to as ?the Taxation Act?). This section when enacted adopted the definition of ?motor vehicle? contained in Section 2(18) of the Motor Vehicles Act, 1939. Subsequently, Section 2(18) was amended by Act 100 of 1956 but no corresponding amendment was made in the definition contained in Section 2(c) of the Taxation Act. The argument advanced before the Court was that the definition in Section 2(c) of the Taxation Act was not a definition by incorporation but only a definition by reference and the meaning of ?motor vehicle? in Section 2(c) must, therefore, be taken to be the same as defined from time to time in Section 2(18) of the Motor Vehicles Act, 1939. This argument was negatived by the Court and it was held that this was a case of incorporation and not reference and the definition in Section 2(18) of the Motor Vehicles Act, 1939 as then existing was incorporated in Section 2(c) of the Taxation Act and neither repeal of the Motor Vehicles Act, 1939 nor any amendment in it would affect the definition of ?motor vehicle? in Section 2(c) of the Taxation Act. It is, therefore, clear that if there is mere reference to a provision of one statute in another without incorporation, then, unless a different intention clearly appears, Section 8(1) would apply and the reference would be construed as a reference to the provision as may be in force from time to time in the former statute. But if a provision of one statute is incorporated in another, any subsequent amendment in the former statute or even its total repeal would not affect the provision as incorporated in the latter statute. The question is to which category the present case belongs.
9. We have no doubt that Section 55 is an instance of legislation by incorporation and not legislation by reference. Section 55 provides for an appeal to this Court on ?one or more of the grounds specified in Section 100?. It is obvious that the legislature did not want to confer an unlimited right of appeal, but wanted to restrict it and turning to Section 100, it found that the grounds there set out were appropriate for restricting the right of appeal and hence it incorporated them in Section 55. The right of appeal was clearly intended to be limited to the grounds set out in the then existing Section 100. Those were the grounds which were before the Legislature and to which the Legislature could have applied its mind and it is reasonable to assume that it was with reference to those specific and known grounds that the Legislature intended to restrict the right of appeal.
The Legislature could never have been intended to limit the right of appeal to any ground or grounds which might from time to time find place in Section 100 without knowing what those grounds were. The grounds specified in Section 100 might be changed from time to time having regard to the legislative policy relating to second appeals and it is difficult to see any valid reason why the Legislature should have thought it necessary that these changes should also be reflected in Section 55 which deals with the right of appeal in a totally different context. We fail to appreciate what relevance the legislative policy in regard to second appeals has to the right of appeal under Section 55 so that Section 55 should be inseparably linked or yoked to Section 100 and whatever changes take place in Section 100 must be automatically read into Section 55. It must be remembered that the Act is a self-contained Code dealing with monopolies and restrictive trade practices and it is not possible to believe that the Legislature could have made the right of appeal under such a code dependent on the vicissitudes through which a section in another statute might pass from time to time. The scope and ambit of the appeal could not have been intended to fluctuate or vary with every change in the grounds set out in Section 100. Apart from the absence of any rational justification for doing so, such an indissoluble linking of Section 55 with Section 100 could conceivably lead to a rather absurd and startling result. Take for example a situation where Section 100 might be repealed altogether by the Legislature ? a situation which cannot be regarded as wholly unthinkable. If the construction contended for on behalf of the respondents were accepted, Section 55 would in such a case be reduced to futility and the right of appeal would be wholly gone, because then there would be no grounds on which an appeal could lie. Could such a consequence ever have been contemplated by the Legislature? The Legislature clearly intended that there should be a right of appeal, though on limited grounds, and it would be absurd to place on the language of Section 55 an interpretation which might, in a given situation, result in denial of the right of appeal altogether and thus defeat the plain object and purpose of the section. We must, therefore, hold that on a proper interpretation the grounds specified in the then existing Section 100 were incorporated in Section 55 and the substitution of the new Section 100 did not affect or restrict the grounds as incorporated and since the present appeal admittedly raises questions of law, it is clearly maintainable under Section 55. We may point out that even if the right of appeal under Section 55 were restricted to the ground specified in the new Section 100, the present appeal would still be maintainable, since it involves a substantial question of law relating to the interpretation of Section 13(2). What should be the test for determining whether a question of law raised in an appeal is substantial has been laid down by this Court in Sir Chunilal v. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. [1962 Supp 3 SCR 549, 557-558 :
AIR 1962 SC 1314] and it has been held that the proper test would be whether the question of law ?is of general public importance or whether it directly and substantially affects the rights of the parties, and if so, whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views.? The question of interpretation of Section 13(2) which arises in the present appeal directly and substantially affects the rights of the parties and it is an open question in the sense that it is not finally settled by this Court and it is, therefore, clearly a substantial question of law within the meaning of this test. We must, therefore, reject the preliminary objection raised on behalf of the respondents against the maintainability of the present appeal."
113. Insofar as his contention that it is only by legislation by incorporation, Mr.Ajmalkhan, the learned Senior Counsel reiterated and placed reliance on the decision of the Honourable Apex Court in Girnar Traders (3) v. State of Maharashtra reported in (2011) 3 Supreme Court Cases 1.(supra).
114. Therefore, learned Senior Counsel submitted that if the latter law specifies the provisions of earlier law, then it is law by incorporation and since the specific provisions have been mentioned in the State Act, it is the law by incorporation. Insofar as the compensation is concerned, he submitted that it has to be paid only in accordance with Sections 23 and 24 of the State Act. Further, he added that the delegation made by the District Collector is only to comply with certain directions and no mala fide can be attributed against the 10th respondent - a Member of the Legislative Assembly, the impleading petitioner herein.
115. However, Mr.Veera Kathiravan, learned Counsel argued that the Land Plan Schedule prepared at the time of notification, has not been produced before this Court and that the amount has to be determined by the authorities only as per Section 19(6) of the State Act. Regarding the policy decision, he submitted that no decision has been taken by the Council of Ministers and further, the impleading petitioner, the Member of the Legislative Assembly, of Virudhunagar Assembly Constituency, is politically motivated.
116. I have meticulously considered the elaborate arguments put forth on either side and scrutinized all the materials available on record carefully, including voluminous typed sets of papers filed by all the parties. To avoid repetition, the arguments and reply arguments put forth by all the parties as stated above, are not quoted again. The very same judgments have been relied upon during arguments and reply arguments by both the parties.
DISCUSSION:
117. The origin of the present litigations before this Court, is LC-403 situated at Ramamoorthy Road, Virudhunagar Town. It is, no doubt, clear that by closing down the level crossings, the valuable human lives would be saved by avoiding the unexpected accidents that happened while crossing the Railway lines. In our speedy life to achieve future goals, it is somewhat difficult to restrain ourselves behind the level crossings to let the trains to run, frequently. To overcome this obstacle, the Government decided to close down almost all the level crossings. One such step is being taken by virtue of G.O.Ms.No.236, dated 03.10.2008, whereby the Government arrived at a conclusion to construct a Road Over Bridge at LC-403. The construction of a Road Over Bridge is not an easy task. To complete the same within a stipulated time, all the procedures regarding such construction would have to be adhered to, within the four corners of law. In case, there is any violation in complying with the pre-requisites of the law, it would end in failure. Here, G.O.Ms.No.236, dated 03.10.2008, came into existence in the year 2008 and till date, no progress had been seen, because of the litigative battle which is going on, endlessly. In any event, the interest of the public at large, is of paramount importance.
118. Upon consideration of the rival contentions, this Court is of the view that the following issues arise for consideration in all these writ petitions:
(i) Whether the State Act, viz., Tamil Nadu Highways Act, 2001, is repugnant to the Central Act, 1894 and to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013?
(ii) if so, whether the notification could survive by taking shelter under the Doctrine of Eclipse?
(iii) Whether the notification issued under Section 15(2) of the State Act, by the District Revenue Officer, is valid?
(iv) Whether all the pre-requisites before issuing the notification under Section 15(2) of the State Act, are complied with?
(v) Whether it is feasible to construct a Road Over Bridge in the existing road?
(vi) Whether political vendetta can be attributed against the State for reverting back to the original proposal, viz., Road Over Bridge?
(vii) Whether the impleading petitions filed in W.P(MD)No.2129, 2190 to 2195 of 2012 and 475 of 2013, are sustainable in law?
Issue No.(i): (Repugnancy)
119.It is the stand of the Government that the State Act is traceable to Entry 13 of List II - State List, of VII Schedule to the Constitution of India, whereas the petitioners contended that the State Act is only traceable to Entry 42 of List III ? Concurrent List, of VII Schedule. Hence, it is just and necessary to refer to those Entries, thus:
Entry 13 of List II - State List:
?13. Communications, that is to say, roads, bridges, ferries, and other means of communication not specified in List I; municipal tramways; ropeways; inland waterways and traffic thereon subject to the provisions of List I and List III with regard to such waterways; vehicles other than mechanically propelled vehicles.?
Entry 42 of List III ? Concurrent List:
"42.Acquisition and requisitioning of property."
120. The main contention of the petitioners is that there is no specific Entry in the List II-State List relating to the State Highways or acquisition of lands for such purpose and hence, both the State Act as well as the Central Act, are traceable to Entry 42 of the List III-Concurrent List of VII Schedule of the Constitution of India. Contending so, the petitioners pleaded that the State Act is, therefore, repugnant to the Central Act.
121. Even according to the Government, if the State Act is not repugnant to the Central Act, then, it is not clear as to why the State Government introduced a Bill to amend the said Central Act, to its applicability to the State of Tamil Nadu. The State amendment to Section 105, namely, Section 105-A, to which the President of India is yet to give assent, reads as follows:
"105-A. Provisions of this Act not to apply to certain Tamil Nadu Acts or to apply with certain modifications.- (1) Subject to sub-section (2), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fifth Schedule.
(2) The State Government may, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule, shall apply to the cases of land acquisition under the enactments specified in the Fifth Schedule or shall apply with such exceptions or modifications as may be specified in the notification. (3) A copy of the notification proposed to be issued under sub-section (2) shall be laid in draft before the Legislative Assembly of the State of Tamil Nadu and if the Legislative Assembly agrees in disapproving the issue of the notification or the Legislative Assembly agrees in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by the Legislative Assembly."
(emphasis supplied.)
122. It is well settled that Article 254 of the Constitution makes provision firstly, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict, Article 254(1) enunciates the indisputable rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a concurrent subject is ?repugnant? to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. Even, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will prevail in that State and override the provisions of the Central Act in their applicability to that State only. A State law would be repugnant to the Union law when there is direct conflict between the two laws. In all such cases, the law made by Parliament shall prevail over the State law under Article 254(1).
123. Article 254(1) of the Constitution of India, has been summarized by the Honourable Supreme Court in M. Karunanidhi v. Union of India reported in (1979) 3 Supreme Court Cases 431, stating that:
?1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.
2. Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254.
3. Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List, the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.
4. Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only.?
124. In Animal Welfare Board of India v. A.Nagaraja and others [Civil Appeal No.5387 of 2014 and batch, decided on 07.05.2014], the Honourable Supreme Court, in paragraph 65 held thus:
"REPUGNANCY:
65. We may now examine whether the provisions of the TNRJ Act, which is a State Act, is repugnant to the PCA Act, which is a Central Act, since, both the Acts fall under Entry No.17 in the Concurrent List. Repugnancy between the Parliamentary Legislation and State Legislation arises in two ways:
i) Where the legislations, though enacted with respect to the matters in their allotted sphere, overlap conflict and
ii) Where two legislations are with respect to the same matters in the concurrent list and there is a conflict. In both the situations, the Parliamentary legislation will predominate in the first by virtue of the non-
obstante clause in Article 246(1), and in the second by reason of Article 254(1) of the Constitution. The law on this point has been elaborately discussed by this Court in the case of Vijay Kumar Sharma v. State of Karnataka (1990) 2 SCC 562."
The above view has been reiterated in many cases by the Honourable Apex Court as rightly contended by the learned Counsels appearing for the petitioners and there can be no quarrel that the central enactment would prevail over the state enactment in matters enumerated in the concurrent list and in case of repugnancy, the portion of the state enactment which is repugnant shall be void.
125. Now it is necessary to verify applicability of the above judgments to the case on hand and for the same, the relevant provisions of the Tamil Nadu Highways Act, the Land Acquisition Act and Land Acquisition Rehabilitation and Resettlement Act, 2013 relating to acquisition and compensation are as follows:
Tamil Nadu Highways Act,2001.
"Section 3: Declaration of roads, ways or lands as highways.- On the recommendation made by the State Highways Authority, the Government may, by notification, declare any road, way or land to be highway and classify it as any one of the following, namely:-
(i) a State Highway;
(ii) a major district road;
(iii) other district road; or
(iv) a village road:
Provided that where such road, way or land whether in whole or part is owned by any local authority, such notification shall be issued with the concurrence of that local authority by a resolution passed by it in this behalf."
Section 8.Power to Fix Highway Boundary, Boundary Line, Control Line, etc:
(1)The Highways Authority of any division may, by notification, in relation to any highway or area in that division, where the construction or development of highway is undertaken or proposed to be undertaken, fix-
(a)the highway boundary, boundary line or control line; or
(b)the highway boundary and the boundary line ; and
(c)the building line and the control line:
Provided that before the publication of the notification under this sub- section, a draft of the said notification shall be published inviting objections, if any, on the proposed fixation.
(2)The draft of the notification under sub-section (1) shall contain-
(a)all details of lands situated between the highway boundary line and control line proposed to be fixed and in the case of new works, the lands and persons benefited by the construction or development of such highway; and
(b)notice requiring all persons likely to be affected by such notification, to make their objection 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 representations, 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 the sub-sections (1), (2) and (3), the Government may, in consultation with the State Highways Authority, having regard to the situation or the requirements of any highway or the condition of the area through which such highway passes,-
(a)Fix different building line and control line for such highway; or
(b)Refrain from fixing the building line or control line for such highway or portion thereof.
"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 may deem fit."
Section 19. Determination of Amount ***** 19 (6). In determining the amount, the collector shall be guided by the provisions contained in sections 23 and 24 and other relevant provisions of the Land Acquisition Act, 1894 (Central Act I of 1894), subject to modification that in the said sections 23 and 24, the reference to the date of publication of the notification under sub-section (1) of Section 4 and the date of publication of the declaration under Section 6 of the said Act shall be construed as reference to the date of publication of notice under sub- sections (2) and (1), respectively of section 15 of this Act.
Land Acquisition Act 1894 Section 4. Publication of preliminary notification and powers of officers there upon (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the official Gazette 1[and in two daily newspapers circulating in that locality of which at least one shall be in the regional language] and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality 1[the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the notification].
(2) Thereupon it shall be lawful for any officer, either, generally or specially authorised by such government in this behalf, and for his servants and workers, to enter upon, survey, and take levels of any land in such locality;
To dig or bore in the sub-soil;
To do all other acts necessary to ascertain whether the land is adapted for Such Purposes;
To set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon;
To mark such levels, boundaries and line by placing marks and cutting trenches and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence and jungle:
Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven day?s notice in writing of his intention to do so.
???????
1.Ins by Act No. 68 of 1984 sec.4 (w.e.f. 24-9-1984).
Section 5. Payment for damage The officer so authorised shall at the time of such entry pay or tender payment for all necessary damage to be done as aforesaid, and in case of dispute as to the sufficiency of the amount so paid or tendered, he shall at once refer the dispute to the decision of the Collector or other Chief Revenue officer of the district and such decision shall be final. Section 5A. Hearing of objections (1) Any person interested in any land which has been notified under Section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days from the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.
(2) Every objection under subsection (1) shall be made to the Collector in writing and the Collector shall give the objector, an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4, subsection (1), or make different reports in respect of different parcels of such land, to the appropriate Government containing his recommendations on the objections, together with the record of the proceedings held by him. for the decision of that Government. The decision of the Appropriate Government on the objections shall be final.
(3) For the purposes of this section, a person shall be deemed to be in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.
Section 6. Declaration that land is required for a public purpose (1) Subject to the provisions of? Part VII of this Act, when the Appropriate Government is satisfied after considering the report, if any, made under Section 5A, subsection (2), that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under Section 4, sub section (1), irrespective of whether one report or different reports has or have been made (wherever required) under Section 5-A, sub-section (2):
1[Provided that no declaration in respect of any particular land covered by a notification under Section 4, subsection (1), -
(i) Published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 but before the commencement of the Land Acquisition (Amendment) Act, 1984 shall he made after the expiry of three years front the date of the publication of the notification; or
(ii) Published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification:
Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority, 2[Explanation 1 In computing any of the periods referred to in the first proviso the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4, subsection (1), is stayed by an order of a Court shall be excluded.
Explanation 2 Where the compensation to be awarded for such property is to he paid out of the funds of a corporation owned or controlled by the State, such compensation shall be deemed to be compensation paid out of public revenues]. (2) Every declaration shall be published in the Official Gazette, 1[and in two daily newspapers circulating in the locality in which the land is Situate of which at least on, shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the date of such publication and the giving of such public notice, being herein after referred to as the date of publication of the declaration), and such declaration shall state] the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and where a plan shall have been made of the land, the place where such plan may be inspected.
(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be; and, after making such declaration the Appropriate Government may acquire the land in a manner hereinafter appearing.
???????
1. Subs. by Act No. 68 of 1984, sec. 6 (w.e.f. 24-9-1984).
2. Ins by Act No. 68 of 1984, sec. 6 (w.e.f. 24-9-1984).
Section 11.Enquiry and award by Collector:- On the day so fixed, or any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under section 9 to the measurements made under section 8 , and into the value of the land {Ins.by Act 38 of 1923, s.5}[ at the date of the publication of the notification under section 4, sub-section (1)], and into the respective interests of the persons claiming the compensation and shall make an award under his hand of?
(i) the true area of the land;
(ii) the compensation which in his opinion should be allowed for the land ; and
(iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him, Provided that no award shall be made by the Collector under this Sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf:
Provided further that it shall be competent for the appropriate Government to direct that the collector may make such award without such approval in such class of cases as the appropriate Government may specify in this behalf. (2) Notwithstanding anything contained in sub-section (1), if at any stage of the proceedings, the collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the collector in the form prescribed by rules made by the appropriate Government, he may without making further enquiry, make an award according to the terms of such agreement. (3) The determination of compensation of any land under sub-section (2) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act.
(4) Notwithstanding anything contained in the Registration Act, 1908, (16 of 1908), no agreement made under sub-section (2) shall be liable to registration under that Act.
Section 11-A. Period within which an award shall be made- The collector shall make an award under section 11 within a period of two years from the date of publication of the declaration and if no such award is made within that period, the entire proceedings for the acquisition of the land shall lapse:
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement. Explanation- In computing the period of two years referred to in this section, the period during which any action or proceeding taken in pursuance of the said declaration is stayed by an order of court shall be excluded.
Section 23. Matters to be considered in determining compensation (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-
First, the market value of the land at the date of the publication of the notification under Section 4, sub-section (1);
Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector?s taking possession thereof, Thirdly, the damage (if any), sustained by the person interested, at the time of the Collector?s taking possession of the land, by reason of severing such land from his other land;
Fourthly, the damage (if any), sustained by the person interested, at the time of the Collector?s taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;
Fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and Sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector?s taking possession of the land.
1[(1A) In addition to the market value of the land above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum of such market-value for the period commencing on and from the date of the publication of the notification under Section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were help up on account of any stay or injunction by the order of any court shall be excluded.] (2) In addition to the market value of the land, as above provided, the court shall in every case award a sum of 2[thirty per centum] on such market value, in consideration of the compulsory nature of the acquisition. ???????
1. Ins by Act No. 68 of 1984, sec. 15 (w.e.f. 24-9-1984), regarding its application to proceedings pending on or after 30. 4.1982.
2. Subs. by Act No. 68 (w.e.f. 24-9-1984).
Section 24. Matters to be neglected in determining compensation But the court shall not take into consideration-
First, the degree of urgency, which has led to the acquisition; Secondly, any disinclination of the person interested to part with the land acquired;
Thirdly, any damage sustained by him, which, if caused by a private person, would not tender such person liable to a suit;
Fourthly, any damage which is likely to be caused to the land acquired, after the date of the publication of the declaration under Section 6, by or in consequence of- the use to which it will be put;
Fifthly, any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired;
Sixthly, any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put; Seventhly, any outlay or improvements on, or disposal of, the land acquired, commenced, made or effected without the sanctified of the Collector after the date of the publication of the notification under Section 4, sub-section (1); or] 1[Eighthly, any increase to the value of the land on account of its being Hart to ally use which is forbidden by land or opposed to public policy.) ???????
1. Ins. by Act No. 68 of 1984, sec. 16 (w.e.f. 24-9-1984).
There are various state amendments, but they are irrelevant for the present facts of the case.
Land Acquisition Rehabilitation & Resettlement Act,2013 Section 4.Preparation of Social Impact Assessment Study. (1) Whenever the appropriate Government intends to acquire land for a public purpose, it shall consult the concerned Panchayat, Municipality or Municipal Corporation, as the case may be, at village level or ward level, in the affected area and carry out a Social Impact Assessment study in consultation with them. In such manner and from such date as may be specified by such Government by notification.
(2) The notification issued by the appropriate Government for commencement of consultation and of the Social Impact Assessment study under sub-section (1) shall be made available in the local language to the Panchayat, Municipality or Municipal Corporation, as the case may be, and in the offices of the District Collector, the Sub-Divisional Magistrate and the Tehsil, and shall be published in the affected areas, in such manner as may be prescribed, and uploaded on the website of the appropriate Government:
Provided that the appropriate Government shall ensure that adequate representation has been given to the representatives of Panchayat, Gram Sabha, Municipality or Municipal Corporation, as the case may be, at the stage of carrying out the Social Impact Assessment study:
Provided further that the appropriate Government shall ensure the completion of the Social Impact Assessment study within a period of six months from the date of its commencement.
(3)The Social Impact Assessment study report referred to in sub-section (1)shall be made available to the public in the manner prescribed under section 6.
(4)The Social Impact Assessment study referred to in sub-section (1) shall, amongst other matters, include all the following, namely:-
(a) assessment as to whether the proposed acquisition serves public purpose;
(b)estimation of affected families and the number of families among them likely to be displaced;
(c)extent of lands, public and private, houses, settlements and other common properties likely to be affected by the proposed acquisition;
(d)whether the extent of land proposed for acquisition is the absolute bare minimum extent needed for the project;
(e)whether land acquisition at an alternate place has been considered and found not feasible;
(f) study of social impacts of the project, and the nature and cost of addressing them and the impact of these costs on the overall costs of the project vis-a-vis the benefits of the project:
Provided that Environmental Impact Assessment study, if any, shall be carried out simultaneously and shall not be contingent upon the completion of the Social Impact Assessment study.
(5) While undertaking a Social Impact Assessment study under sub-section (1), the appropriate Government shall, amongst other things, take into consideration the impact that the project is likely to have on various components such as livelihood of affected families, public and community properties, assets and infrastructure particularly roads, public transport, drainage, sanitation, sources of drinking water, sources of water for cattle, community ponds, grazing land, plantations, public utilities such as post offices, fairprice shops, food storage godowns, electricity supply, health care facilities, schools and educational or training facilities, anganwadis, children parks, places of worship, land for traditional tribal institutions and burial and cremation grounds.
(6)The appropriate Government shall require the authority conducting the Social Impact Assessment study to prepare a Social Impact Management Plan, listing the ameliorative measures required to be undertaken for addressing the impact for a specific component referred to in sub-section(5), and such measures shall not be less than what is provided under a scheme or programme, in operation in that area, of the Central Government or, as the case may be, the State Government, in operation in the affected area.
SECTION 5.Public hearing for Social Impact Assessment:
Whenever a Social Impact Assessment is required to be prepared under section 4, the appropriate Government shall ensure that a public hearing is held at the affected area, after giving adequate publicity about the date, time and venue for the public hearing, to ascertain the views of the affected families to be recorded and included in the Social Impact Assessment Report.
Section 6.Publication of Social Impact Assessment Study:
(1)The appropriate Government shall ensure that the Social Impact Assessment study report and the Social Impact Management Plan referred to in sub-section (6) of section 4 are prepared and made available in the local language to the Panchayat, Municipality or Municipal Corporation, as the case may be, and the offices of the District Collector, the Sub Divisional Magistrate and the Tehsil, and shall be published in the affected areas, in such manner as may be prescribed, and uploaded on the website of the appropriate Government.
(2)Wherever Environment Impact Assessment is carried out, a copy of the Social Impact Assessment report shall be made available to the Impact Assessment Agency authorised by the Central Government to carry out environmental impact assessment:
Provided that, in respect of irrigation projects where the process of Environment Impact Assessment is required under the provisions of any other law for the time being in force, the provisions of this Act relating to Social Impact Assessment shall not apply.
Section 7.Appraisal of Social Impact Assessment report by an Expert Group (1)The appropriate Government shall ensure that the Social Impact Assessment report is evaluated by an independent multi-disciplinary Expert Group, as may be constituted by it.
(2)The Expert Group constituted under sub-section(1) shall include the following, namely:-
(a) two non-official social scientists;
(b) two representatives of Panchayat, Gram Sabha, Municipality or Municipal Corporation, as the case may be;
(c)two experts on rehabilitation; and
(d)a technical expert in the subject relating to the project. (3) The appropriate Government may nominate a person from amongst the members of the Expert Group as the Chairperson of the Group.
(4)If the Expert Group constituted under sub-section(1), is of the opinion that,
(a)the project does not serve any public purpose; or
(b)the social costs and adverse social impacts of the project outweigh the potential benefits, it shall make are commendation within two months from the date of its constitution to the effect that the project shall be abandoned forthwith and no further steps to acquire the land will be initiated in respect of the same:
Provided that the grounds for such recommendation shall be recorded in writing by the Expert Group giving the details and reasons for such decision:
Provided further that where the appropriate Government, inspite of such recommendations, proceeds with the acquisition, then, it shall ensure that its reasons for doing so are recorded in writing.
(5) If the Expert Group constituted under sub-section(J), is of the opinion that, -
(a)the project will serve any public purpose; and
(b)the potential benefits outweigh the social costs and adverse social impacts, it shall make specific recommendations within two months from the date of its constitution whether the extent of land proposed to be acquired is the absolute bare-minimum extent needed for the project and whether there are no other less displacing options available:
Provided that the grounds for such recommendation shall be recorded in writing by the Expert Group giving the details and reasons for such decision.
(6)The recommendations of the Expert Group referred to in sub-sections(4) and(5) shall be made available in the local language to the Panchayat, Municipality or Municipal Corporation, as the case may be, and the offices of the District Collector, the Sub-Divisional Magistrate and the Tehsil, and shall be published in the affected areas, in such manner as may be prescribed and uploaded on the website of the appropriate Government.
Section 8.Examination of Proposal for land acquisition and Social Impact Assessment report by appropriate Government:
(1)The appropriate Government shall ensure that-
(a)There is a legitimate and bonafide public purpose for The proposed acquisition which necessitates the Acquisition of the land identified;
(b)the potential benefits and the public purpose referred to in clause (a) shall outweigh the social costs and adverse social impact as determined by the Social Impact Assessment that has been carried out;
(c) only the minimum area of land required for the project is proposed to be acquired;
(d)there is no unutilised land which has been previously acquired in the area;
(e)the land, if any, acquired earlier and remained unutilised, is used for such public purpose and make recommendations in respect thereof.
(2) The appropriate Government shall examine the report of the Collector, if any, and the report of the Expert Group on the Social Impact Assessment study and after considering all the reports, recommend such area for acquisition which would ensure minimum displacement of people, minimum disturbance to the infrastructure, ecology and minimum adverse impact on the individuals affected.
(3)The decision of the appropriate Government shall be made available in the local language to the Panchayat, Municipality or Municipal Corporation, as the case may be, and the offices of the District Collector, the Sub-
Divisional Magistrate and the Tehsil, and shall be published in the affected areas, in such manner as may be prescribed, and uploaded on the website of the appropriate Government:
Provided that where land is sought to be acquired for the purposes as specified in sub section (2) of section 2, the appropriate Government shall also ascertain as to whether the prior consent of the affected families as required under the proviso to sub-section..(2)of section2, has been obtained in the manner as may be prescribed.
Section 11. Publication of Preliminary Notification and power of officers thereupon:
(1) Whenever, it appears to the appropriate Government that land in any area is required or likely to be required for any public purpose, a notification (hereinafter referred to as preliminary notification) to that effect alongwith details of the land to be acquired in rural and urban areas shall be published in the following manner, namely:-
(a)in the Official Gazette;
(b)in two daily newspapers circulating in the locality of Such area of which one shall be in the regional language;
(c)in the local language in the Panchayat, Municipality or Municipal Corporation, as the case may be and in the offices of the District Collector, the Sub-divisional Magistrate and the Tehsil;
(d)uploaded on the website of the appropriate Government;
(e)in the affected areas, in such manner as may be prescribed.
(2) Immediately after issuance of the notification under sub-section(1), the concerned Gram Sabha or Sabhas at the village level, municipalities in case of municipal areas and the Autonomous Councils in case of the areas referred to in the Sixth Schedule to the Constitution, shall be informed of the contents of the notification issued under the said sub-section in all cases of land acquisition at a meeting called especially for this purpose.
(3) The notification issued under sub-section(1) shall also contain a statement on the nature of the public purpose involved, reasons necessitating the displacement of affected persons, summary of the Social Impact Assessment Report and particulars of the Administrator appointed for the purposes of rehabilitation and resettlement under section 43.
(4)No person shall make any transaction or cause any transaction of land specified in the preliminary notification or create any encumbrances on such land from the date of publication of such notification till such time as the proceedings under this Chapter are completed:
Provided that the Collector may, on the application made by the owner of the land so notified, exempt in special circumstances to be recorded in writing, such owner from the operation of this sub-section:
Provided further that any loss or injury suffered by any person due to his wilful violation of this provision shall not be made up by the Collector.
(5)After issuance of notice under sub-section(1), the Collector shall, before the issue of a declaration under section 19, undertake and complete the exercise of updating of land records as prescribed within a period of two months.
Section 14. Lapse of Social Impact Assessment report:
Where a preliminary notification under section 11 is not issued within twelve months from the date of appraisal of the Social Impact Assessment report submitted by the Expert Group under section 7, then, such report shall be deemed to have lapsed and a fresh Social Impact Assessment shall be required to be undertaken prior to acquisition proceedings under section 11:
Provided that the appropriate Government, shall have the power to extend the period of twelve months, if in its opinion circumstances exist justifying the same:
Provided further that any such decision to extend the period shall be recorded in writing and the same shall be notified and be uploaded on the website of the authority concerned.
Section 24.Land acquisition process under Act No 1 of 1894 shall be deemed to have lapsed in certain cases:
(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894,-
(a)where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or
(b)where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.
(2)Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act. 1894.where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.
126. A conjoint and comparative reading of the provisions, it is clear that the repugnancy between the state and central enactments. There is no quarrel in the judgments relied upon by the counsel for the petitioner as well as that of the respondents regarding the applicability of Doctrine of Incorporation or Doctrine of Reference as the judgments lay down the principle that in the case of incorporation of the provisions of one act into another, despite the repeal or modification to the Former Act, the Later Act would survive. However, in cases of general reference to certain provisions of another act, any amendment, repeal or modification to the former act would certainly affect the Later Act. Therefore, whether the application of provisions of one act is by incorporation or reference would vary from facts of each case and the enabling provision in the Later Act.
127. From Section 19(6) of the Highways Act, it clear that the provisions of the Land Acquisition Act, 1894 have not been incorporated but only a general reference is found. There is a reference to use of the provisions of section 23 and 24 of the 1894 Act, as no specific provisions are available for considering the basis on which the value of the land has to be fixed. The use of the word ?and other relevant provisions? in the section absolves the doubts, if any.
128.The provision for compensation in any acquisition proceedings is in-built and cannot be alienated from other provisions regarding acquisition. The pre-
requisites before an award under the Old Central Act and the state Act are also different. As per Section 19 (6) of the State Act, the reference to publication of a notification under 4 (1) and 6 of the land acquisition Act, 1894 shall be construed to be the date of publication of notice under sub- sections (2) and (1) of Section 15 of the State Act. There is no provision regarding inspection and survey under section 15(2) of the state Act as found in sections 4and 8 of the Act of 1894. However, such powers have been granted to the Highways Authority under section 8 and 14 of the State Act.
129.There is an overwhelming difference in the procedures and the power vested with the officers. Under the State Act, the identification of the land is spelled as a pre-requisite and the identification of the area, extent, angles and other pre-requisites are to be done by the Highways authority. The pre-notification under section 15 (2) is contemplated only after the exercise prescribed under section 3, 8 and 14.Whereas under the Central Act, the preliminary investigation commences only after the preliminary notification expressing the intention to acquire the land for public purpose is published. The word ?public purpose? is emphasized under the central act as the government is entitled to acquire the land even for companies. Whereas, once the land is sought to be acquired under the state Act, as the title of the Act itself spells out any acquisition could only be for public purpose.
130.Further, as per section 11 of the Central Act of 1894, the Collector or the special acquisition officer as the case may be has to pass an award regarding the true area of the land, compensation to be paid and the apportionment of the compensation among the eligibles as per his knowledge. Whereas, under the state Act, the power to deviate from the proposal and marking of the land has been given to the Highways Authority under Section 8 of the State Act. This is in sharp contrast not only to the provisions of the Central Act but in fact to section 15 of the state Act itself. The power to proceed with the acquisition of a particular land or drop it can only be vested with the acquisition officer and not with the Highways authority. Similarly, the notification under section 15 (1) is to be treated as award under the State Act. The same is evident from the language used in section 16 of the State Act. The award under section 11 of the Old Central Act was comprehensive, where the notification under section 15 (1) of the State Act cannot be said to be so as the provisions regarding compensation would commence after notification. Further, the collector before passing the award under section 11 must conduct an enquiry under section 11 and it is only during that enquiry, the amount of compensation is fixed and the extent of acquisition is also finalised. Whereas under the state Act, no such enquiry is contemplated under section 15 (3) of the state Act. Though as per section 68 of the State Act, it is expressly provided that unless provided, the provisions of the Land Acquisition Act, 1894 are not applicable to acquisition under the State Act, the comparison is inevitable in view of the reference in section 19 (6). But as already pointed out, the provisions for determination and payment of compensation cannot be separated from the acquisition proceedings in view of the limitation and the procedures prescribed under the Old Central Act.
131. It is settled law that non-publication of notification under Section 4 of the Old Act would render the entire proceedings void. As per section 14, a notification under section 11 must be issued within twelve months from the date of report of the expert group failing which the proceedings would have to commence afresh. A notification for acquisition has to be effected under section 19 within twelve months from the date of preliminary notification under section 11 and an award has to be passed within twelve months from the date of publication of the notification under section 19 failing within the acquisition proceedings would lapse. The time period prescribed in the new Central Act is significant because of the provisions regarding the fixation of the value of compensation.
132. Also, under the State Act, the collector shall complete the enquiry and take a decision within 6 months from the date of reference by the Government for determining the award. No time limit has been fixed for the taking a decision on determining the amount of compensation and reference to the collector. Whereas under the Old Act, the time prescribed for a collector to take a decision as per Section 11 A is two years. In view of the fact that there is a direct nexus regarding the time taken for deciding the progress of the project as per the notification under section 15 and the award of compensation, in the absence of provisions specifying the period which the enquiry must be completed, this court has no option but to hold that the state Act is repugnant to the provisions of the Old Act and is hit by Article 14 for being Arbitrary. It is also arbitrary for the reason that there seems to be no proof for having taken logistical survey before taking a decision regarding the selection of ROB or RUB. This court on comparison definitely finds repugnancy between the state Act and central Acts.
133. Now in this case, before a decision could be taken by the concerned authority, the 1894 Act has been repealed and a new Act came into existence in 2013. Under the new Act, there must a social impact study to ascertain the correctness of the public purpose and the report must be evaluated by the expert body which must take a decision within two months. In the new central Act of the year 2013, various provisions have been included regarding Social Impact Assessment study and Expert opinion in cases where land is acquired for public purpose. It is no longer a decision of the executive and bureaucrats. The object behind the new Act is to ensure a balance between the projects developed for public purpose and the interest of that fraction of public whose properties are acquired or proposed to be acquired. Keeping in mind the above decisions, this Court holds that there is repugnancy in the State Act with that of the Central Act. By advent of the Central Act, 2013, the State Acts which have borrowed the provisions of the Old Central Act of 1894 have become redundant under circumstances not covered by the saving clauses in section 24 and 63.In view of the fact that the old Act has been repealed and the new Act has come into force, all pending proceedings including the impugned notification would stand vitiated.
134. This court is unable to accept the argument of the Learned Senior Counsel for the 10th respondent that since the Act is not under challenge, the repugnant provisions would survive and is operative. This court is of the view that though the provisions would survive to exist unless it is struck down, it would be inoperative as long as it is repugnant to the Central enactment as per the dictum of the Apex court in various judgments relied upon by the counsel for the petitioners.
135. The Honourable Apex Court in a recent judgment in Sree Balaji Nagar Residential Association v. State of Tamil Nadu and others reported in CDJ 2014 SC 763, considered the applicability of the notification under the State Act after the enactment of the Central Act. In that case, there was a proposal to acquire the lands for the development of a proposed canal by name Madhavaram Left Flank Water Surplus Course and the proceedings were stayed by the High Court and a specific plea was raised to declare the proceedings under the old Act as lapsed. After Considering the scope of Section 24, the Honourable Apex Court held as follows:
"There is no dispute that writ petitions were filed even before the making of award and interim orders have operated against the State of Tamil Nadu and, therefore, the State was not at fault in not taking physical possession of the concerned lands under acquisition. But the intention of the Legislature in enacting Section 24(2) of the 2013 Act will have to be culled out from its wordings and on the basis of other relevant provisions of this Act and the relevant case law for deciding whether the period of stay/injunction is required to be excluded in computing the five years? period or not.
From a plain reading of Section 24 of the 2013 Act it is clear that Section 24(2) of the 2013 Act does not exclude any period during which the land acquisition proceeding might have remained stayed on account of stay or injunction granted by any court. In the same Act, proviso to Section 19(7) in the context of limitation for publication of declaration under Section 19(1) and the Explanation to Section 69(2) for working out the market value of the land in the context of delay between preliminary notification under Section 11 and the date of the award, specifically provide that the period or periods during which the acquisition proceedings were held up on account of any stay or injunction by the order of any court be excluded in computing the relevant period. In that view of the matter it can be safely concluded that the Legislature has consciously omitted to extend the period of five years indicated in Section 24(2) even if the proceedings had been delayed on account of an order of stay or injunction granted by a court of law or for any reason. Such casus omissus cannot be supplied by the court in view of law on the subject elaborately discussed by this Court in the case of Padma Sundara Rao (Dead) & Ors. v. State of T.N. & Ors. (2002) 3 SCC 533.
Even in the Land Acquisition Act of 1894, the Legislature had brought about amendment in Section 6 through an Amendment Act of 1984 to add Explanation 1 for the purpose of excluding the period when the proceeding suffered stay by an order of the court, in the context of limitation provided for publishing the declaration under Section 6(1) of the Act. To a similar effect was Explanation to Section 11A which was added by Amendment Act 68 of 1984. Clearly the Legislature has, in its wisdom, made the period of five years under Section 24(2) of the 2013 Act absolute and unaffected by any delay in the proceedings on account of any order of stay by a court.
The plain wordings used by the Legislature are clear and do not create any ambiguity or conflict. In such a situation, the court is not required to depart from the literal rule of interpretation.
It was faintly suggested by Mr. Subramonium Prasad, learned AAG for the State of Tamil Nadu that the proviso may come to the rescue of the State and save the proceedings from suffering lapse if it is held that since there was an award leading to payment of compensation in respect of some of the land holdings only, therefore all the beneficiaries may now be entitled to compensation in accordance with the provisions of the 2013 Act. This contention could have been considered with some more seriousness if physical possession of the land had been taken but since that has not been done, the proviso dealing only with compensation cannot be of any help to the State. Therefore, we are not required to go deeper into the effect and implications of the proviso which prima facie appears to be for the benefit of all the land holders in a case where the award is subsisting because the proceedings have not lapsed and compensation in respect of majority of land holdings has not been deposited in the account of the beneficiaries. There is nothing in the language of the proviso to restrict the meaning of the words used in Section 24(2) mandating that the proceedings shall be deemed to have lapsed if the award is five years or more than five years? old but the physical possession of the land has not been taken over or the compensation has not been paid. The law is trite that when the main enactment is clear and unambiguous, a proviso can have no effect so as to exclude from the main enactment by implication what clearly falls within its express terms, as held by Privy Council in the case of Madras and Southern Mahratta Railway Co. Ltd. v. Bezwada Municipality AIR 1944 PC 71 and by this Court in the case of C.I.T. v. Indo Mercantile Bank Ltd. AIR 1959 SC 713.
The judgment of three Judges? Bench in the case of Harakchand Misirimal (supra) has been followed by another Bench of three Judges in the case of Union of India & Ors. etc. v. Shivraj & Ors.etc. (2014) 6 SCC 564. In paragraphs 25 and 26 of that judgment, this Court took notice of a clarification issued by the Government of India, Ministry of Urban Development, Delhi Division dated 14.03.2014. Part of the circular extracted in that case clearly shows that the period of five years or more in Section 24(2) of the 2013 Act has been prescribed with a view to benefit the land-
losers and the period spent in litigation due to challenge to the award or the land acquisition proceedings cannot be excluded.
From the discussions made above, it is amply clear that though there is lack of clarity on the issue whether compensation has been paid for majority of land holdings under acquisition or not, there is no dispute that physical possession of the lands belonging to the appellants under consideration in these appeals has not been taken by the State or any other authority on its behalf and more than five years have elapsed since the making of the award dated 30.11.2006 and 01.01.2014 when the 2013 Act came into force. Therefore, the conditions mentioned in Section 24(2) of the 2013 Act are satisfied for allowing the plea of the appellants that the land acquisition proceedings must be deemed to have lapsed in terms of Section 24(2) of the 2013 Act. The appeals are disposed of accordingly.
It goes without saying that the Government of Tamil Nadu shall be free, if it so chooses to initiate proceedings of such land acquisition afresh in accordance with the provisions of 2013 Act. In the facts and circumstances of the case there shall be no order as to costs."
136. In the above judgment, the Honourable Apex Court has held that even if award has been passed, when the physical possession is not taken and compensation is not paid, the proceedings under the old Act would lapse. The scenario is much worse here. The acquisition proceedings are at the notification stage. Therefore, the proceedings can only be deemed to have been lapsed as per section 24(2) of the Central Act.
137. In view of the above findings, this court holds that the provisions of the State Act are repugnant to the provisions of the central Act 1894 and also to the new Act of 2013. The issue is decided in favour of the petitioners.
138. Issue No.(ii): (Doctrine of Eclipse) In view of the repugnancy in the procedures for acquisition and fixing of the compensation, to override the provisions of the Central Act, the assent of the President must be obtained to take shelter under Article 254(2) of the Constitution of India, which has not happened so far. The Learned Counsels appearing for the respondents have sought recourse under the doctrine of eclipse to contend that once the state amendment receives the assent of the president, the notification would survive. This court is unable to accept the contention of the respondents. Even the theory of Doctrine of Eclipse cannot come to the aid of the respondent state because, the theory would be applicable only in cases, where a subsequent event or condition, has made an existing law unworkable and after the lapse of the condition or event, the law which is in the middle of eclipse could be revived to become operative.
139. In the present case, this court has already held that the provisions of the state Act are repugnant to the provisions of the Old Act itself and are also arbitrary. For the doctrine to apply, the law must be valid when it was enacted. This principle has no application to post-Constitution laws infringing the fundamental rights as they would be ab initio void in toto or to the extent of their contravention of the fundamental rights as held by the Constitutional Bench of the Apex Court in Bhikaji Narain Dhakras And Others vs The State Of Madhya Pradesh And another (1955 AIR 781). As per the proviso to Article 31 A, the protection to a state Act is available only after the assent is obtained from the President of India. It has already been held by this court in preceding paragraphs that the provisions of the State Act is repugnant and the old central Act itself has been repealed and the new Act has come into force. The procedures for fixation under the new Act are different and the procedures prescribed for acquisition are also different. As already held, the acquisition proceedings have to be commenced afresh in view of section 24 of the New Act.
140. In the present case, the notification was issued before the proposed amendment. Once the procedure prescribed under the statue is not followed, the doctrine of eclipse cannot come to the aid. Even if the amendment receives the assent of the president, it could be enforced only with prospective effect and the actions which at the time of initiation are illegal cannot be regularised by an act of amendment. Any such analogy would go against the basic feature of our constitution and it would rather lead to undesirable consequences where every state would resort to amend the state act to save the incoherent action taken by them on a matter falling in the concurrent list. Even as per Revenue Standing Order( RSO) 90 (4) of the state, no subsequent proceedings under the Act can have retrospective effect or validate the action previously taken. Even though the reference there could mean to apply to central Act of 1894, the same analogy would be applicable to any action taken under the state Act. Further, the notification has already been held to arbitrary and therefore, for all the reasons above, this court is of the view that the impugned notification cannot be made to survive by invoking the doctrine of eclipse. This court also makes it clear, that while implementing projects for public purpose, the government rather than attempting to ratify an act must be cautious to ensure that there is no violation of the provisions of all the applicable statutes. This issue is decided in favour of the petitioners.
141. Issue No.iii. (Competency) The impugned notification under Section 15(2) of the State Act, had been issued by the District Revenue Officer, who was delegated to exercise the powers vested with the District Collector, by G.O.Ms.No.78, dated 22.06.2011.
142. Regarding this aspect, the petitioners contended that when three authorities have been named under the Tamil Nadu Highways Rules, 2003, viz., the Government, the District Collector and the Special Deputy Collector, Land Acquisition, Tamil Nadu Urban Development Project-III, the Government cannot exercise the power of delegation in favour of the authority who had not been mentioned under the Rules and therefore, the impugned notification had been issued by an incompetent authority, which ultimately, would vitiate the same.
143. Whereas the Government took a stand that as per Section 56 of the State Act, the Government can authorise any authority to exercise any of the powers vested in the Government and that a notification had already been issued delegating the powers under Section 56 of the State Act, in favour of the District Revenue Officer and therefore, the impugned notification is tenable.
144. This Court has considered the submissions made in this regard. It is not the case of the petitioners that the District Collector has delegated the power vested in him to the District Revenue Officer. Though, it can only be the Government, the District Collector or the Special Collector (Land Acquisition) who is competent under the Act, the Government is entitled to delegate the powers vested in it by virtue of Section 56 of the State Act. The Rules cannot wither away the rights under the Act. The rules have to be read in tandom with the Act and the purpose for which, the Act was enacted must be borne in mind so as to give a meaningful purpose to the provisions. This Court is of the view that in the absence of delegation of power, the District Revenue Officer is not competent enough to issue such notification under Section 15(2) of the State Act. Since, a proper notification delegating the powers vested with the Government, to the District Revenue Officer had come into existence and in that event, this Court finds that the District Revenue Officer could exercise such powers as per law. Further a reading of section 19 of the State Act would illustrate that the acquisition officer need not be the collector alone. A meaningful reading of section 19 (3) would indicate that upon failure of the talks for settlement between government and the person to whom amount has to be paid, the government shall refer the matter to the collector. The collector has to dispose such reference within 6 months as per section 19(11) and the power to transfer the referral to some other officer is also provided under section 19 (12). Therefore, the Acquisition officer can be any officer of the government empowered with delegation of powers.
145. Further, the definition of the term ? Collector? in section 2 (5)reads as follows:
? Collector? means the collector of a district and includes any officer specifically appointed by the government to perform the functions of the collector under this Act;
Therefore, it is very clear from the above definition, the word collector used in the various provisions would not only mean the District Collector but would also include any other person appointed specifically under this Act. It is not the nomenclature that would matter. Rather the authority to carry out a particular Act under delegation would matter. Even as per Revenue Standing order 90 (5), a special officer should be appointed whenever land is required for public work. The standing order also makes provisions for providing sufficient support staff for survey. The purpose of setting up a separate team is to ensure that the acquisition proceedings are completed as early as possible to put the project into motion. Therefore, this court is of the view that the delegation of power to the District Revenue officer is valid. This issue is decided in favour of the government.
146. Issue No.(iv): (Pre-requisites) Before analysing as to whether the impugned notification had been issued after complying with the pre-requisites of the State Act, this Court finds it appropriate to refer to various provisions of the Tamil Nadu Highways Act, 2001, and they are as follows:
"Section 2(7): "division" means the area declared by the Government under section 4;"
***** ***** ***** ***** "Section 2(11): "Government" means the State Government;"
"Section 2(12): "highway" means any road, way or land which is declared to be a highway under section 3 and includes -
(a) all land appurtenant thereto, whether demarcated or not;
(b) the slope, berm, burrow pits, foot paths, pavement, whether surfaced or unsurfaced;
(c) all bridges, culverts, cause ways, carriageways or other structures built on or across such road or way;
(d) the foot-way attached to any road, public bridge or causeway;
(e) the drains attached to any such street, public bridge or causeway and the land, whether covered or not by any pavement, varanda or other structure, which lies on either side of the roadway upto the boundaries of the adjacent property, whether that property is private or property belonging to the Central Government or any State Government; and
(f) all fences, trees, posts and boundaries, hectometre and kilometre stones and other highway accessories and materials stacked on such road or public bridge or causeway.
but does not include a National Highway declared as such by or under the National Highways Act, 1956 (Central Act 48 of 1956).
"Section 2(13): "Highways Authority" means the officer appointed under sub-section (2) of section 5;"
"Section 2(14): "highway boundary" means the highway boundary as may be fixed under section 8."
***** ***** ***** ***** "Section 2(16):"local authority" means -
(i) any Municipal Corporation established under any law for the time being in force; or
(ii) any Municipal Council constituted under the Tamil Nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920); or
(iii) any District Panchayat or any Panchayat Union Council or any Village Panchayat constituted under the Tamil Nadu Panchayats Act, 1994 (Tamil Nadu Act 21 of 1994);"
***** ***** ***** ***** "Section 2(21): "State Highways Authority" means the officer appointed under sub-section (1) of section 5;"
***** ***** ***** ***** "Section 3: Declaration of roads, ways or lands as highways.- On the recommendation made by the State Highways Authority, the Government may, by notification, declare any road, way or land to be highway and classify it as any one of the following, namely:-
(i) a State Highway;
(ii) a major district road;
(iii) other district road; or
(iv) a village road:
Provided that where such road, way or land whether in whole or part is owned by any local authority, such notification shall be issued with the concurrence of that local authority by a resolution passed by it in this behalf."
"Section 4: Declaration of divisions.- The Government may, by notification, declare any area to be a division for the purpose of the highways in such area."
"Section 5: Appointment of Highways Authorities.-(1) The Government may, by notification, appoint an officer of the Highways Department of the Government not below the rank of the Chief Engineer, as the State Highways Authority.
(2) The Divisional Engineer, Highways Department of the Government in-
charge of each division, shall be the Highways Authority for that division."
"Section 6: Functions of Highways Authorities.-(1) The State Highways Authority shall be responsible for the overall supervision of the construction, maintenance, development or improvement of the highways in the State and for the restriction of ribbon development along the highways. The State Highways Authority shall, from time to time, issue such instructions as may be necessary to the Highways Authorities for carrying out the purposes of this Act.
(2) Every Highways Authority may, with the approval of the State Highways Authority, undertake the construction, maintenance, development or improvement of any highway and for restriction of ribbon development along such highway, including for the prevention and removal of encroachments and for all matters necessary or incidental thereto, in its division, in such manner and within such time as may be specified by the State Highways Authority in this behalf."
***** ***** ***** ***** Section 8.Power to Fix Highway Boundary, Boundary Line, Control Line, etc:
1.The Highways Authority of any division may, by notification, in relation to any highway or area in that division, where the construction or development of highway is undertaken or proposed to be undertaken, fix-
(a)the highway boundary, boundary line or control line; or
(b)the highway boundary and the boundary line ; and
(c)the building line and the control line:
Provided that before the publication of the notification under this sub- section, a draft of the said notification shall be published inviting objections, if any, on the proposed fixation.
2.The draft of the notification under sub-section (1) shall contain-
(a) all details of lands situated between the highway boundary line and control line proposed to be fixed and in the case of new works, the lands and persons benefited by the construction or development of such highway ; and
(b) notice requiring all persons likely to be affected by such notification, to make their objection 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 representations, 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 the sub-sections (1), (2) and (3), the Government may, in consultation with the State Highways Authority, having regard to the situation or the requirements of any highway or the condition of the area through which such highway passes,-
(a)Fix different building line and control line for such highway; or
(b)Refrain from fixing the building line or control line for such highway or portion thereof.
?Section 9: Restriction on building.- On or after the date of the publication of the notification under sub-section (1) of section 8 in relation to any highway or any area, no person shall, in such highway or in such area, in respect of any land lying between the highway boundary and the building line or between the building line and the control line, as the case may be, -
(a) erect any building or make or extend any excavation or carry out any mining or other operation in, or over such land or make any material change in the use of, or construct, form, or layout any works on such land; or
(b) construct, form or layout any means of access to or from such highway, except with the written permission of the Highways Authority and in accordance with such terms and conditions, as may be specified in such permission.?
***** ***** ***** ***** "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 may deem fit."
147. Insofar as the pre-requisites are concerned, this Court finds that the impugned notification under Section 15(2) of the State Act, had been issued without complying with the pre-requisites by issuing a Notification under Section 8(1) of the Act fixing Highway Boundary, building line or control line and without even issuing notice as per Section 8(2) (b) of the Act to the person(s) likely to be affected by such Notification and therefore, the issuance of notification under Section 15(2) of the State Act, is nothing but arbitrary exercise of powers. It is only when actual marking is done, the extent of land required can be arrived at. Before that, the road has to be notified as State Highways under Section 3 of the State Act. This court has already discussed about the array of sections in earlier paragraphs. Under the state Act, the government should consider the objections under section 15 (3) and pass an order. Whereas, the enquiry regarding the extent, alignment and other technical issues are to be decided by the Highways authority. Therefore, before a notification proposing to acquire the proposed lands are published, there must be an identification after a decision with a reasoning.
148. The cost involved in the entire project, like construction costs and acquisition costs can be worked out paving way to decide the feasibility of Road Over Bridge or Road Under Bridge. It is possible only after following the procedure contemplated under Section 8 of the State Act. Further as per RSO 90 (6), when the land is sought to be acquired at the instance particular department, an application must be sent by the department to the Revenue Divisional Officer with a copy to the District Collector. As per RSO 90 (8), a preliminary valuation statement has to be prepared. The inspection will be done by the revenue officials in the presence of the concerned departmental authorities. As per RSO 90 (8) (ii), the land must be identified and stacked out. The provision is to prepare a field plan identifying the exact extent of land and to fix the compensation. The marking and identification of lands is contemplated under section 8 of the State Act in the present case.
149. Strangely both the counsels for the petitioners and the contesting respondents have relied upon judgments referring to the decision of the Division Bench of this Court in R.Kumar and others v. State of Tamil Nadu reported in (2007) 2 MLJ 384. In the judgment in CeeDeeYes Standard Towers (P) Ltd. v. The Collector of Chennai reported in 2013 (1) CWC 425, this court has held that unless there is a notification declaring the roads as Highway and marking under section 8, the notification under section 15 cannot be issued and therefore struck down the notification.
However, this court in Jayaraman v. State of Tamil Nadu reported in 2014 (1) CWC 635, interpreting the very same judgment to be in favour of the government has held that prior notification or declaration under section 3 and 8 of the Act are not necessary.
150. This court upon perusal of the judgment in Kumar?s case could trace the ratio that unless there is a declaration or notification as a particular road to be Highways, there cannot be any notification under section 15. In that case, factually, the Division Bench found that there was a notification already in existence. The relevant portion, extracted is as follows:
?21. Regarding the other argument that it requires a declaration to be made as highways under Section 3 of the Tamil Nadu Highways Act, the said exercise has already been done by the State vide its notification dated 06.10.2003 (stated supra).
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, --
(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."
151. In the present case, there is no such notification declaring the road as Highways and no marking was also done as contemplated under section 3 and 8 of the State Act. The enquiry contemplated under section 15 (3) would become meaningless as decision of the acquisition officer would be based on the notification under section 8, the objections thereto and the objections to the notification under section 15 (2). Section 8 of the state Act is the preliminary valuation after inspection as contemplated in RSO 90 (8). Further as per RSO 90 (3), the officer who selects the land on behalf of the requiring department is bound to see that the interest of the state government, of the public and private individuals are duly considered and the site and the alignments are chosen so as to cause the minimum expenditure. Similarly, only the land that is absolutely necessary must be acquired. As early as on 14.03.1985, the Special commissioner and Commissioner of Land Acquisition has issued instructions to the District Collectors, District Revenue Officers and Additional Collectors vide Letter No (1.1) 10188/85 dated 14.03.1985. This also necessitates the preliminary marking. The state must be to safe guard the public interest in all aspects. The peculiar facts of this case is that the notification was earlier issued by the Government for constructing a ROB and later, it seems a decision has been taken by the Highways authority, the Collector and even the Joint secretary requested the Commissioner of the Municipality to pass as resolution for the construction of RUB. Had any notification of road as State Highways and drawing of building line or control line been effected as per section 3 and section 8, such a confusion and delay for nearly a decade would not have arose. The purpose of issuing a notification is to enable the highways authority to decide whether to continue the development or construction or drop it or to continue with the existing marking or make a different marking. While deciding the marking, the authorities would certainly have to consider various aspects like exact extent of land required, involvement of cost in acquisition, construction and duration. Nevertheless, it is always favourable if minimum extent is acquired. Considering the above peculiar facts, this court is of the view that the judgment in Jayaraman v. State of Tamil Nadu reported in 2014 (1) CWC 635,cannot be applied to the present case.
152. It is settled law that when the law prescribes an act to be done in a particular way, there cannot be any deviation from it. Hence, the state having failed to follow the procedures contemplated under the Act, cannot be permitted to continue with the acquisition proceedings based on the notification under section 15.Hence the notification is termed as arbitrary and not in accordance with law. This issued is decided in favour of the petitioners.
153. Issue No.(v): (Feasibility) What could be understood from the arguments of either side in regard to the feasibility aspect is concerned, is that the Government decided to construct a Road Over Bridge across LC-403, situated at Ramamoorthy Road, Virudhunagar Town. Accordingly, the impugned notification under Section 15(2) of the State Act had been issued, calling for the objections from the land owners. Meanwhile, in the High Level Committee meeting, said to be held on 24.02.2009, a decision was taken to go for a Road Under Bridge, instead of a Road Over Bridge. However, there is no material evidence to sustain such decision. In any case, it is made clear that any decision in a meeting without feasibility report, cannot be valid. The Municipality was also requested to pass a resolution suitably and there is delay on the part of the Municipality in passing such resolution. It is seen that so many communications had been sent to the Municipal Chairman as well as to the Municipal Commissioner, to pass a resolution in this regard. Suddenly, at one point of time, the proposal had been again reverted to its original position, viz., Road Over Bridge. Aggrieved by the same, the petitioners are before this Court, seeking a Road Under Bridge. The contention of the petitioners that the decision to construct a bridge alone can be termed as a policy decision and the decision regarding Road Over Bridge or Road Under Bridge cannot be a policy decision, is not accepted, because the decision involves so many financial intricacies.
154. This Court feels that it is for the Government to decide as to which bridge is feasible, either a Road Over Bridge or a Road Under Bridge, in all aspects. It is not open for the individuals to question the decisions of the Government taken in public interest. The Government, in all fairness, must conduct a detailed study of the pros and cons of constructing a Road Over Bridge or Road Under Bridge. It is not just the feasibility, but the convenience of the public, the overall cost and other hazards have to be taken into account.
155. The judgments relied upon by the learned Additional Advocate General and the learned Senior Counsel for the 10th respondent regarding interference of the Court in the matter of expert opinion and public policy, are squarely applicable to the present facts. This Court is of the considered view that the Courts, in exercise of their power of judicial review, should not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc., and that the Courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not, as it is left open to the discretion of the State. It is pertinent to point out, that the issue of feasibility would have even arose if the authorities concerned has followed the procedure contemplated under section 3 and 8 of the Act. Most of the petitioners before this Court have also stated that they are ready to give the land without any compensation if RUB is constructed. This court recording the same, appreciates the petitioners for taking such a stand. The government shall consider this aspect also while deciding the feasibility of the bridge. Accordingly, it is open to the government to conduct the survey and decide on the feasibility of whichever bridge is to be constructed in public interest. This issue is decided in favour of the government.
156. Issue No.(vi): (Political Vendetta and malice) Change in political scenario is pleaded to be the cause of action by the petitioners for conversion from Road Under Bridge to that of its original proposal, so to say, Road Over Bridge. According to the petitioners, in order to cause damages to the 12th petitioner in W.P(MD)No.2129 of 2012, the proposal had been changed into Road Over Bridge. However, this Court finds that the original proposal itself is only for Road Over Bridge, but in the High Level Meeting said to be held on 24.02.2009, a decision is stated to have been taken to change the nomenclature as Road Under Bridge, on the ground that the Road Over Bridge is costlier when compared to the Road Under Bridge. By this kind of oral instructions, a Government Order issued by the State could not be modified simply. However, there is no material evidence to prove that due to political motive, the conversion had been made, after change of the Government.156. In fact, the documents on record and the pleadings only show that to benefit certain individuals, a decision to deviate from the original proposal of ROB was made without any basis. Mere allegations in the form of affidavit without proof are insufficient to prove malice. As rightly contended by the Learned Advocate General, the communication by certain officers cannot vitiate the stand of the Government and also cannot bind the Government. As a rule of general law in a democratic country, the public welfare is the motive of the government. The public are part of the government. The government cannot be presumed to act against public interest. Hence, this Court is of the view that no political motive could be attributed against the State for enforcing the original proposal, viz., the Road Over Bridge. However, subject to the feasibility to be analysed by the experts in the field after taking into account the width of the existing road therein, cost and utility. Accordingly, the plea of political vendetta is rejected. This issue is decided in favour of the government.
157. Issue No.(vii): (Impleading Petitioners) The impleading petitioner in W.P(MD)No.2129 of 2012, having failed his attempt in approaching this Court by filing a Public Interest Litigation, has tried to achieve what he had lost therein by filing the present miscellaneous petitions to implead himself as a party to the present litigation. On considering the submissions put forth by either side, this Court finds that he has not made out a case for impleading himself in the writ proceedings. Likewise, the impleading petitions in M.P(MD)Nos.1 and 1 of 2014 in W.P(MD)Nos.2190 to 2195 of 2012 and 475 of 2013, are not tenable. Accordingly, M.P(MD)No.1 of 2014 in W.P(MD)No.2129 of 2012, and M.P(MD)Nos.1 and 1 of 2014 in W.P(MD)Nos.2190 to 2195 of 2012 and 475 of 2013, are liable to be rejected. This issue is decided in favour of the writ petitioners.
158. CONCLUSION:
From the above discussions, it is clear that the state Act is repugnant to the provisions of the Central Act. The mandatory procedures contemplated under the State Act have also been not followed. The road must first be declared as a highway, then the markings have to be made and a notification has to be published as contemplated under section 8. Then upon receipt of the objections, the Highways authority has to conduct and enquiry and decide on the extent and alignment. Only thereafter a notification under section 15 (2) can be published calling for objections. Only after an order is passed under section 15 (3), the notification under section 15 (1) can be effected. It is pertinent to mention here when the provisions regarding the procedure were included, it is to ensure less cost and minimum acquisition. As already held, the delegation of power is valid. The District Revenue officer can proceed with the acquisition proceedings after the mandates are followed. It is open to the state government to decide on the construction of the ROB or RUB after the conclusion of the enquiry and based on the report of concerned technical experts. Accordingly, the impugned notification issued under Section 15(2) of the State Act, is set aside for the reasons stated above. The right to hold a property is a constitutional right. The right to acquire the lands for public purpose is an exemption to the constitutional right. The State indisputably has the right to acquire any land for public purpose. But, it must always ensure that only the required land is acquired. When the same is sought to be deprived, the State must act strictly in accordance with the provisions of the Act. The State must bear in mind that any deviation therefrom would vitiate the entire proceedings. The inordinate delay has occasioned due to the misfeasance of authorities of the state. This has not only resulted in delay in project but has also resulted in matter getting protracted till the advent of the new Act. As observed by the Apex Court and this Court in many cases, the state must not frivolously contest the cases against them. The state must in public interest, whenever it is alleged that either opportunity is not sufficient or the procedure is not followed, must without hesitation come forward to set at nought the illegality by initiating fresh proceedings. Had the state been more vigilant and anti-litigative, it could have effected the notifications afresh as contemplated under law and completed the project itself by now. In view of the above, the impugned notification is set aside. However, the State is at liberty to issue fresh notification after complying with the statutory provisions. It is also made clear that while fixing the compensation to be paid to the persons from whom the lands are acquired, the provisions of the Central Act, 2013 have to be followed. The State is directed to conduct a feasibility study by seeking expert opinion to strike a balance between cost, extent of lands required to be acquired after following the procedures as contemplated under Section 8 of the Tamil Nadu Highways Act, 2001, in regard to Road Over Bridge or Road Under Bridge within a period of six weeks and thereafter, issue a notification within two weeks from thereon calling for objections, conduct and conclude the proceedings as per law. The State shall also take steps to ensure that the work is commenced not later than three months from the date of receipt of the copy of this order.
159. In the result,
(i) W.P(MD)Nos. 2328 and 2329 of 2012, are disposed of, as above.
(ii) W.P(MD)Nos. 2129, 2190 to 2195, 2326, 2327 and 12639 of 2012 and 475 and 1441 of 2013 are allowed, with the above directions.
(iii) M.P(MD)Nos.1, 1 and 1 of 2014 in W.P(MD)Nos.2129, 2190 to 2195 of 2012 and 475 of 2013, are dismissed.
(iv) Consequently, all the other connected miscellaneous petitions are closed. There shall be no order as to costs, in all the writ petitions.
To
1.The Secretary to Government, The State of Tamil Nadu, Highways and Minor Ports Department, Fort St. George, Chennai - 600 009.
2.The District Collector, Virudhunagar District, Virudhunagar.
3.The District Revenue Officer, Virudhunagar, and Land Acquisition Officer, Virudhunagar.
4.The Divisional Engineer, (Highways), NABARD & Rural Roads, Paramakudi, Ramanathapuram District.
5.The Divisional Engineer, (Highways), Virudhunagar District, Virudhunagar.
6.The Commissioner, Virudhunagar Municipality, Virudhunagar.
7.The General Manager, Southern Railways, Chennai.
8.The Superintendent of Police, Virudhunagar District, Virudhunagar.
9.The Regional Transport Officer, Virudhunagar District, Virudhunagar.