Madras High Court
P.Venkataraman vs The Government Of Tamilnadu on 9 November, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.11.2012 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.10065 of 2010, M.P.Nos.1 and 2 of 2010 and Contempt Petition No.1449 of 2009 P.Venkataraman .. Petitioner in both petitions Vs. 1.The Government of Tamilnadu, Rep. By its Secretary, Highways and Minor Ports (HW2)Department, Fort St.George, Chennai 600 009. 2.The Chief Engineer (H) Metro, Tamilnadu Highways Department, Chennai 600 016. 3.The District Collector, Tiruvallur District. 4.The Divisional Engineer, Highways Department, Guindy, Chennai 600 032. 5.The Special Deputy Tahsildar(Land Acquisition) Tamilnadu Urban Development Scheme III Chennai at Poonamallee. .. Respondents in W.P.No.10065/2009 1.Mr.Palanikumar, I.A.S., The District Collector, Tiruvallur District. 2.Mr.Kothandan The Chief Engineer (General) Tamilnadu Highways Department, Chepauk, Chennai 600 005. 3.Mr.Narayanan, The Divisional Engineer, Highways Department, Guindy, Chennai 600 032. .. Respondents in Cont.P.No.1449/2009 Writ petition filed under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus, calling for the records of the Impugned Proceedings on the file of the 1st Respondent - vide Government letter No.16427/HW2/2009 Highways & Minor Ports (HW2) Department dated 22.4.2010, consequently the Notification under section 15(1) of the Tamilnadu Highways Act - vide Proceedings of the 5th Respondent in Na.Ka.No.309/2009/A1 dated 12.4.2010 and to quash the same and direct the Respondents to realign the widening of the road over the Patta lands of the Petitioner situated at Survey Nos.115 (19 cents) and 116 (39 cents) at Village No.38, Vadaperumbakkam Village, Ambattur Taluk, Tiruvallur District, in consonance with the provisions of the Section 8 of the Tamilnadu Highways Act, 2001 and Rules 3,4 and 5 of the Tamilnadu Highways Rules 2003. Contempt Petition filed under Section 11 of the Contempt of Courts Act to punish the respondents for the contempt committed by him by violating the order dated 27.11.2009 made in W.P.No.21805 of 2009. For Petitioner : Mr.G.K.R.Pandian For Respondents : Mr.P.Sanjay Gandhi,AGP(Edn) C O M M O N O R D E R
Both the writ petition and the contempt petition were filed by the same petitioner. The writ petition was filed by the petitioner, seeking to challenge an order of the first respondent viz., the State Government dated 22.04.2010 and the consequential notification issued under Section 15(1) of the Tamilnadu Highways Act by the 5th respondent viz., Special Deputy Tahsildar (LA), Tamil Nadu Urban Development Scheme III, Chennai dated 12.04.2010 and after setting aside the same sought for a direction to the respondents to realign the widening of the road over the Patta lands of the petitioner situated at Survey Nos.115 (19 cents) and 116 (39 cents) in the Vadaperumbakkam Village, Ambattur Taluk, Tiruvallur District in consonance with the provisions of the Section 8 of the Tamil Nadu Highways Act, 2001 and Rules 3,4 and 5 of the Tamil Nadu Highways Rules, 2003.
2. When the writ petition came up for admission on 13.05.2010, this Court while directing notice to the respondents granted interim stay of dispossession alone for a limited period. On 28.07.2010, interim order was extended until further orders. The writ petition itself came to be admitted on 25.08.2010. The respondents have filed vacate stay application in M.P.No.1 of 2010 together with supporting counter affidavit dated 30.08.2010 filed by the 4th respondent viz., Divisional Engineer, Highways Department.
3. The same petitioner also filed a contempt petition No.1449 of 2009 alleging the earlier order passed by this Court in W.P.No.21805 of 2009 dated 27.11.2009 was flouted by the respondents. In that contempt, the learned Government Pleader was directed to get instructions. Finally, when the contempt came up on 08.10.2012, on being informed about the pendency of the subsequent writ petition filed by the same petitioner, the said writ petition was also directed to be posted along with the contempt petition with the consent of both sides.
4. The contempt petition arose out of the order dated 27.11.2009 in W.P.No.21805 of 2009. In that writ petition, the petitioner sought for restrained order against the respondents from aligning the State Highways Road No.111 by trespassing and encroaching the patta lands of the petitioner in Survey Nos.115 and 116, Vadaperumbakkam Village. This Court disposed of the writ petition on 27.11.2009 recording the statement made by the learned Government Advocate appearing for the respondents that the land in question was the patta land of the petitioner and only alignment was being noted by the respondents and they will not disturb the petitioner without following the procedure contemplated under the Tamil Nadu State Highways Act, 2001.
5. Subsequently, the petitioner once again filed another writ petition being W.P.No.5152 of 2010 seeking for a direction to take appropriate action on the basis of petitioner's representation dated 15.02.2010. That writ petition was disposed of by an order dated 15.03.2010 directing the respondents to consider the representation of the petitioner in accordance with law. Pursuant to the said direction, the State Government considered the petitioner's representations dated 15.10.2009, 16.02.2010 and 22.02.2010 and replied to him vide letter dated 22.04.2010. It was stated by the State Government that the construction of culvert is very much essential in the proposed site as it would discharge rain water at the time of monsoon, thus preventing inundation of the road for free flow of vehicular traffic. Therefore, his request for realignment of the road cannot be considered. It was thereafter, notice was issued by the Highways Department signed by the 5th respondent proposing to acquire a portion of S.No.115 and S.No.116 owned by the petitioner. In those two survey numbers, 310 Sq.M and 341 Sq.M respectively was sought to be acquired and the petitioner was informed that he can make appropriate objections. Thereafter, an order was passed under Section 15(2) of the Tamil Nadu Highways Act and Public Notice was given on 12.04.2010 informing that enquiry will be held on 12.05.2010 at 11.00 am and the petitioner was asked to appear before the authorities. Even without appearing before the authorities, despite notice was given to him, the petitioner has chosen to rush to this Court and had obtained an interim order, thereby stalling a public project.
6. In the counter affidavit filed by the respondent, it was stated that because of the interim order obtained as early as 13.05.2010, the respondents cannot proceed with the work further. The works have been abandoned thereby causing endanger to the public and apart from they are unable to complete the work of widening the road only in a portion of stretch within the petitioner's property. It is not the entire land of the petitioner being affected. Only a portion of his land about 651 Sq.M. (7008 Sq.Ft) alone needed for widening the road. Widening of the existing Madhavaram Red Hills Road from KM 4/2-9/6 has been taken up at a cost of Rs.857 lakhs after getting the administrative approval from the Government. The Widening of the Madhavaram Red Hills Road involves lot of acquisition of private land. The department field officer undertook filed investigation to assess the extent of lands owned by the private individuals. The field staff of the department erected peg marks for identifying the extent of land. The Government has accorded sanction for acquiring the land for widening the road vide G.O.Ms.No.225 Highways Department, dated 11.11.2005. Pursuant to the same, under the provisions of Tamil Nadu Highways Rules 2003, in terms of Rule 3 and 5, notification was published in two daily newspapers. The details of the proposed acquisition was sent to the petitioner. The petitioner had also participated in the enquiry on 12.05.2010 and submitted his objections. The map of Madhavaram Red Hills Road has been prepared and kept at the office of the Divisional Engineer. The petitioner can raise objection after going through the map.
7. Even in the earlier writ petition, it was stated that the State was intending to proceed to acquire the land after following due procedure. IRC is the Apex body in respect of evolving the standards, design and specifications for road and bridge works. Therefore, it is not possible to realign the road excluding the petitioner's land. The standards are periodically updated in tune with the changing technological advancements. Therefore, changing the alignment of the road and abandoning the constructions of culverts beneath the surface if the carriage way could not be prepared at given point of time. Culverts in the road would discharge rain water and prevent inundation of the riding surfaced. The allegation that there were enormous poramboke land were available on the other side of the road does not make any sense. The existing road is proposed to widen taking into consideration the increased public tranquility and to reduce the traffic congestion. There is no possibility to realign the road at the whims and fancies to suit the convenience of the petitioner interest. The representation of the petitioner has been examined by the State Government in detail and informed that construction of culvert is very much essential at the proposed site and the alignment cannot be changed as per petitioner's request.
8. Time and again, this Court has held that laying of road is an expert job and the Court cannot interfere with reference to alignment of any road formation. The petitioner's objection to the State Government was rejected and even in the enquiry held through pubic notice, the petitioner has given objection. Therefore, there is no case made out for interfering with the action initiated by the respondents. Hence, the writ petition stands dismissed. No costs. Connected miscellaneous petitions are closed.
9. In Contempt Petition No.1449 of 2009, a counter affidavit dated 23.07.2012 has been filed by the respondents. In paragraphs 6 and 7, it was averred as follows:-
6. It is submitted that the present stage of work on the above said land, as per the Hon'ble Court stay in the survey No.115 and 116, the widening of road work is not taken up, the culvert work is also not taken up and centre median work is also not taken up. The culvert work is partly constructed in the existing portion and in the other half which comes under the petitioner land, the culvert work is not taken up and it is kept open and filled with earth to avoid accident.
7. It is submitted that without completing the above work the contract has been foreclosed due to time over run of 5.4 km length. It is submitted that widening work on the both sides of petitioner land is completed (Photos are enclosed), the traffic finds difficult to negotiate near the petitioner land and sometimes this place struck in traffic congestion due to narrow width of road at this place. I submit that interim order granted by Hon'ble Court in W.P.No.21805/2009 in M.P.No.1 fully obeyed not to continue the widening from two lane to four lane and strengthening of Madhavaram Red Hills Road from Km 4/2 to 9/2 to length of 5.4 km, the Contract has been foreclosed."
10. The Supreme Court in Ramniklal N.Bhutta and another v. State of Maharashtra and others reported in (1997) 1 SCC 134, held in such matters larger public interest should be kept in mind and in paragraph 10, it was observed as follows:-
"10 ....Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode or redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings."
11. The maps as well as the photographs produced by the respondent clearly shows that the acquisition of the petitioner's land is inevitable and only because of the interim order, the respondents are unable to complete the work. The petitioner has unnecessarily created a bottleneck in the formation of widening of the road. This Court do not find any contempt is made out. Accordingly, the contempt petition stands dismissed.
To
1.The Government of Tamilnadu, The Secretary, Highways and Minor Ports (HW2)Department, Fort St.George,Chennai 600 009.
2.The Chief Engineer Metro Tamilnadu Highways Department, Chennai 600 016.
3.The District Collector, Tiruvallur District.
4.The Divisional Engineer, Highways Department, Guindy, Chennai 600 032.
5.The Special Deputy Tahsildar(Land Acquisition) Tamilnadu Urban Development Scheme III Chennai at Poonamallee Svki