(Prayer: WP.No.27438 of 2014 :- Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari calling for the records relating to (i) the five notices bearing the same reference number and date viz., Na.Ka.No.2/2013/ORR/Kancheepuram dated 04.11.2013 issued U/s. 15(2) of the Tamil Nadu Highways Act 2001 on the file of the second respondent (ii) the notice bearing G.O.Ms.No.102, Highways & Minor Ports (HF2) Department, dated 01.09.2014 issued U/s. 15(1) of the Tamil Nadu Highways Act 2001 on the file of the first respondent and published in the Tamil Nadu Government Gazette No.36 dated 17.09.2014 & (iii) the five notices bearing the same reference number and date viz., Na.Ka.No.2/2013/ORR/Kancheepuram dated 18.09.2014 issued U/s.16(2) of the Tamil Nadu Highways Act 2001 on the file of the fourth respondent and to quash the same insofar as the same are relating to the portions of their industrial lands comprised in S.Nos.261-B/2A1 pt., 261-B/2A2A1 pt., 261-B/2A2B1A pt., 261-B/2A2B2A pt. & S.Nos.261-B/2C2A pt., situated at No.2, Vandalur Village and measuring 1148 sq.mtrs., 781 sq.mtrs. 55 sq.mtrs. 1360 sq.mtrs & 1357 sq.mtrs, i.e., in total 4701 sq.mtrs (50.582.76 sq.ft.)
Prayer in WP. No.1904 of 2016 :- Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari calling for the records relating to the interim award No.10/2015 Block-VII viz., the notice bearing Na.Ka.No.02/2013/ORR/Kancheepuram dated 18.12.2015 issued U/s.12(2) of the Land Acquisition Act 1894 on the file of the fourth respondent in respect of the petitioner's land bearing R.s.No.261-B/16 situated at No.2, Vandalur Village, Kancheepuram District, measuring 1360 sq.mtrs.
Prayer in WP. No.1905 of 2016 :- Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari calling for the records relating to the Interim Award No.10/2015, Block-VII, viz., the Notice bearing Na.Ka.No.02/2013/ORR/Kancheepuram dated 18.12.2015 issued U/s.12(2) of the Land Acquisition Act 1894 on the file of the fourth respondent in respect of the petitioner's land bearing R.S.No.261-B/17 situated at No.2, Vandalur Village, Kancheepuram District, measuring 1357 sq.mtrs.
Prayer in WP. No.1906 of 2016 :- Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari calling for the records relating to the Interim Award No.10/2015 Block-VII, viz., the Notice bearing Na.Ka.No.02/2013/ORR/Kancheepuram dated 18.12.2015 issued U/s.12(2) of the Land Acquisition Act 1894 on the file of the fourth respondent in respect of the petitioner's land bearing R.S.No.261-B/2A1B situated at No.2, Vandalur Village, Kancheepuram District, measuring 1148 sq.mtrs.
Prayer in WP. No.1907 of 2016 :- Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari calling for the records relating to the Interim Award No.10/2015 Block-VII, viz., the Notice bearing Na.Ka.No.02/2013/ORR/Kancheepuram dated 18.12.2015 issued U/s.12(2) of the Land Acquisition Act 1894 on the file of the fourth respondent in respect of the petitioner's land bearing R.S.No.261-B/15 situated at No.2, Vandalur Village, Kancheepuram District, measuring 55 sq.mtrs.
Prayer in WP. No.1908 of 2016 :- Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari calling for the records relating to the Interim Award No.10/2015 Block-VII, viz., the Notice bearing Na.Ka.No.02/2013/ORR/Kancheepuram dated 18.12.2015 issued U/s.12(2) of the Land Acquisition Act 1894 on the file of the fourth respondent in respect of the petitioner's land bearing R.S.No.261-B/14 situated at No.2, Vandalur Village, Kancheepuram District, measuring 781 sq.mtrs.)
1. The facts on which the petitioners have rested their cause for their current action may be stated:
* The first petitioner is a company registered under the Companies Act. The first petitioner company owned a block of land measuring 3.75 acres in Survey Nos.261-B/2A1 pt. and 261-B/2A2B2A pt of Vandalur Village, Kancheepuram District. The second petitioner, who is the widow of the Founder-Chairman of the first petitioner owns another block of land measuring 1.34 acres in Survey Nos.261-B/2A2A1 pt. and 261-B/2A2B1A pt. Both these properties lie adjacent to each other. The second petitioner has leased her 1.34 acres of land to the first petitioner company. In other words, the first petitioner is in possession of 5.09 acres of industrial lands. The first petitioner has established an industrial unit in the said property.
* Since 1993-1994, petitioners ran into difficult times, when their properties were repeatedly targeted for acquisition. In 1993-1994, the Government had acquired 24,000 sq.ft. for the Highways Department, part of which it was not able to utilise for about 20 years. In May 1998, Government had acquired another 11,985 sq.ft., this time for the Railways. The aforesaid two acquisitions had reduced the total holding of the petitioners to 4.18 acres. Be that as it may, on 04.11.2013, the petitioners were issued with personal notices under Section 15(2) of the Tamil Nadu Highways Act, 2001, this time for providing additional facilities to the Multilane Interchange Flyover to be constructed by it, at the junction of the Outer Ring Road and GST Road, and required the petitioners to come forward with their objections if any, to the said proposal.
* The petitioners have filed their objections to Section 15(2) notice on 30.11.2013. Broadly the objections of the petitioners were that their properties are not required for the present purpose, that adjacent properties on the other side of the road is available within Vandalur Zoo, that the properties now sought to be acquired lie far away from the proposed road alignment. However, the Government has proceeded to issue notification under Section 15(1) of the Tamil Nadu Highways Act, 2001, without following the procedure prescribed under Rule 5(2) and 5(3) of the Tamil Nadu Highways Rules, 2003. Alleging that the enquiry required to be held pursuant to the notice issued under Section 15(2) is mandatory and indispensable, the same was defeated when the Government mechanically issued a notification under Section 15(1).
1.2 On the aforesaid allegation, the petitioners have come forward with W.P.No.27438 of 2014 for issuance of Writ of Certiorari to quash the notice issued dated 04.11.2013 issued under Section 15(2) of the Tamil Nadu Highways Act and a notification in G.O.Ms.No.102, Highways & Minor Ports (HF2) Department dated 01.09.2014 issued under Section 15(1) well as the subsequent notices issued under Section 16(2) dated 18-09-2014.
2.1 During the pendency of the said writ petition, the land acquisition authority had measured the properties of the petitioners and divided them into 5 blocks and sub-divided the survey fields and issued separate notices dated 07.11.2014 under Section 19(5) of T.N. Act 2001, inviting the objections of the petitioners to the amount proposed to be awarded as compensation. Of them, 3 notices were issued to the first petitioner in WP.No.27438 of 2014 and the remaining two notices were issued to the second petitioner in W.P.No.27438 of 2014. This was followed by separate interim awards dated 18.12.2015.
2.2 Challenging the interim awards, but without prejudice to the contentions taken in WP.27438/2014, the first petitioner viz., Titanium has filed W.P.Nos.1904 to 1906 of 2016 and the second petitioner has filed W.P.Nos.1907 & 1908 of 2016. In the affidavits filed in support of these 5 writ petitions, it is inter alia averred that the statute does not provide for passing a preliminary award and a final award, that in view of the coming into force of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30/13), compensation ought to have been granted in terms of the Central Act.
3.1 The second respondent/Land Acquisition Authority has filed its counter affidavit and the same was adopted by the third respondent in WP.No.27438/14 (the one in which petitioners challenge the notices under Sec.15(2) and notification under Section 15(1) of the Tamil Nadu Highways Act , 2001). It is explained that the Government of Tamil Nadu has decided to form an Outer Ring Road for linking the southern, western and northern parts of the Chennai City. This road is to have a total length of 60.15 kms. and was to be completed in 2 phases. This road will connect the GST Road at Vandalur and Minjur Village in Tiruvallur District. The whole idea for forming this Outer Ring Road was to decongest the heavy vehicle traffic in the city. The Chennai Metropolitan Development Authority (CMDA) had earlier acquired 29.65 kms in Vandalur Village in Kancheepuram District to Nemilichery Village in Tiruvallur District crossing NH-45 at Vandalur Village, NH-4 at Poonamallee and NH-205 at Nemilicherry Villages. The lands proposed to be acquired for this Mega Project is spread over 14 villages in Kancheepuram District and 11 villages in Tiruvallur District. The first phase acquisition is for a length of 25.6 kms the second phase acquisition is for a distance of 30.5 kms. The road was to be constructed as a joint-venture project to be executed at a cost of around Rs.1,081 crores. Necessary administrative sanction have been accorded by the Government. The entire project work involves construction of Interchanges, Bus-bays, Truck Lay bays, improvement of major and minor junctions and barring them, other aspect of the project which primarily involves laying the road has been completed.
3.2 So far as the design for the project, more particular about the formation of Interchange at NH-45 Vandalur Village, concerning which the present writ petition has arisen. The same was approved by National Highways Authority of India but only after carefully considering the various other alternatives brought before it. Secondly, nearly 94.85% of the work involving laying of the roads have been completed and now it is extremely difficult to change the design of the road.
3.3 So far as the availability of lands at Vandalur Village is concerned, the said lands too have been acquired by the Zoological Department and those lands cannot be used for the present purpose. Further, the zero point for Phase-I of the proposed project commences at Vandalur Village and here substantial lands are required for effective completion of the project. In particular, petitioner lands are acquired for Interchange at NH-45 and not for any other purposes such as bus bay etc., The Government has issued notification under Section 15(1) of the Act only after due consideration of the objection raised by the petitioners.
4. On the point of determining the compensation amount, in all the five writ petitions in W.P.Nos.1904 to 1908 of 2016, the Land Acquisition Authority has averred that an attempt was made to determine the compensation amount to be paid by a consensual agreement but they were in vain. Resort was therefore made to determine the compensation, towards which a notice under Sec.19(5) was issued. The interim compensation were issued based on G.O.Ms.No.59 Highways and Minor Ports (HF-1) Department dated 29.05.2014, which provides for passing of the interim awards in view of the coming into force of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30/2013) (hereinafter would be referred to as Right to Fair Compensation Act) and has clarified that such awards are being passed subject to additional compensation to be paid as per the provisions of the Right to Fair Compensation.
5. The learned counsel for the petitioners submitted:
* That a notice under Sec. 15(2) of the Act dated 04.11.2013 was served on the petitioner which simultaneously (a) provided 15 days time for filing of objection and (b) fix the date of enquiry to 26.11.2013. This was responded to by the petitioners with the preliminary objection dated 30.11.2013, wherein it is indicated that the said notice, though dated 04.11.2013 was served on the petitioners only on 13.11.2013 and therefore, sought time till 5.12.2013 to file the objections. Time was accordingly extended by the land acquisition authority till 03.12.2013, and an elaborate counter along with several documents running to over 100 pages was submitted.
* As per Rule 5(2) of the Tamil Nadu Highways Rules 2003, the authority concerned should forward the objections to the Highways Department, from whom a response to landowners' objection must be elicited, and that any such response received from the Highways Department must be made available to the petitioner. Thereafter, a date of enquiry must be notified in which the landowners may have to be granted an opportunity to provide necessary evidence to sustain their objections to the intended acquisition. This provision is grossly breached in the instant case, and without any application of mind, the objection of the petitioners were merely forwarded to the Government and the Government has rejected the same without any application of mind. This gains significance in the context of the petitioners' contention that the proposed land to be acquired lies far away from the proposed road-interchange, that it would defy a straight-line alignment of proposed road, and that there are lands available on the other side of the road near Vandaloor Zoo and its utilisation can enable formation of a road with a straight line alignment. If only an effective hearing was granted to the petitioners within the meaning of Rule 5(3), the petitioners would have had an occasion to explain the same to the authority, and this was denied. Besides, the first petitioner is a company of its kind in the entire country, and if the acquisition is permitted the petitioner would have to shift its company elsewhere which would be economically unviable.
* Relying on the judgment of the Hon'ble Supreme Court in Chief Information Commissioner and Another Vs. State of Manipur and Another [(2011) 15 SCC 1] and A.R.Antulay Vs. Ramdas Sriniwas Nayak and Another [1984 2 SCC 500], and Kunwar Pal Singh Vs. State of U.P. [(2007 5 SCC 85]. The learned counsel argued when the statute mandates that a certain thing shall be done in a certain manner, the same shall be done in that manner and it is not given to the authority concerned to ignore or substitute that which the statute has prescribed. If so viewed, the entire acquisition is hit as the petitioners were denied right of effective hearing.
6. As to the passing of the interim awards are concerned, the petitioners have participated in the enquiry but without prejudice to the contention herein above raised in WP.No.27438 of 2014. Here the petitioners' counsel would argue that primarily there were no provisions available for passing of interim awards, and inasmuch as the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30/2013) has already come in to force when awards were passed, it is not given to the authorities to ignore its provisions therein contained, and the same is not affected even under Section 105-A introduced Vide by the Tamil Nadu Amendment to Central Act 30/2013.
7. Per contra, Mr.Karthikeyan, learned Additional Government Pleader, appearing for the respondents submitted:
* That under Rule 2 to Rule 4 of the Tamil Nadu Highways Rules 2003, the authorities who are required to hold enquiry are not empowered with the power to decide on such objections. They are merely collecting points for receiving the objections of the landowners and the response of the Departments and then to make it over to the Government for taking a decision under Section 15(3) of the Tamil Nadu Highways Act, 2001.
* Second, there is no case for the petitioners that they were denied an opportunity to place whatever objections they felt necessary to resist the proposed acquisition or to place such evidentiary materials which in their opinion are relevant for substantiating their objections. To this, the Highways Department has only offered its remarks in a tabular form and that essentially is limited to their insistence for acquisition. As required under Rule 5(4) materials provided by the owners of the land which included the petitioners and that of the Highways Department to the Government. This would mean that at no stage prior to the application of mind by the Government under Sec. 15(3) was there a breach of any of the statutory requirements either in letter or in spirit.
* Lastly, the petitioners cannot challenge the design of the road since the same is not justifiable and in the instant case it has been approved by the National Highways Department. That apart, nearly 94.83% of the total project has already been completed and it is nigh difficult to change the design when only a negligible yet critical portion alone remains to be completed. Considerable public funds is invested in the project and in the matters concerned in land acquisition, the public interest involved should outweigh the interest and inconvenience of the private individuals whose lands are acquired.
8. The Points before this court are:
A. Whether the statutory compliance of Rule 5(2) to 5(4) of Tamil Nadu Highways Rules, 2003 are inadequate to the extent it renders the entire acquisition illegal.
B. Whether passing of the interim awards are legally unsustainable.
9. Let the basic facts be revisited :
Here is a project involving the formation of an Outer Ring Road running to an extent of 60.15 kms. at an expenditure of 1,081.80 crores. At the time when the counter was filed on 24.11.2014, 94.85% of work had already been completed. Given the magnitude of the project and the extent of land acquired, the property of the petitioners constitutes a fraction, which this court does not dismiss as valueless.
10.1 It is in this backdrop, the contentions of the petitioners have to be considered. Section 15 of the Tamil Nadu Highways Act reads as under :
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 not 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.
The initial proposal for acquisition is conveyed under Section 15(2) of the Act. This may be equated to Section 4(1) of the Land Acquisition Act, 1894. The power to finalise on the acquisition is granted to the Government under Section 15(3). In between, an enquiry is statutorily contemplated where objections are invited from the owners of those lands which are proposed to be acquired, hear the Highways Department on the said objections, and if they come out with any tangible material in answer to the objections filed by the land owners, the same shall be made available to the latter and thereafter, to let both the sides place necessary materials in support of their respective contentions and then to forward all the materials to the Government. In other words, the nature of enquiry contemplated in Rule 5 is not directed at deciding the proprietary right of the land owners. Here this Court finds merit in the argument of learned Additional Government Pleader when he submitted that the scope of enquiry is limited to obtaining necessary materials both in aid of and opposing the acquisition and then forwarding them to the Government for it to take a decision under Sec.15(3) of the Act. It may be added that the enquiry contemplated under Rule 5 can never be stretched into a judicial enquiry of adversarial character, or equated to one intended for deciding the rights of the parties on a preponderance of probabilities. If it were to be construed thus, it would impact the power of eminent domain drastically and adversely.
10.2 Having obtained the materials under Rule 5(4), it is the Government that takes the decision to acquire or not to acquire, and given the statutory scheme of the Tamil Nadu Highways Act, right to pre-acquisition hearing extends only to the extent of providing materials for the decision of the Government under Sec.15(3) of the Act, and not to participate in the process of decision making by the Government. Here, the following passage of the Hon'ble Supreme Court from Maneka Gandhi Vs Union of India and Another [(1978) SC 597], is apt in the context. (at page 629)
' 63. ..... Now, it is true that since the right to prior notice and opportunity of hearing arises only by implication from the duty to act fairly, or to use the words of Lord Morris of Borth-y-Gest, from 'fair play in action', it may equally be excluded where, having regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its implication and even warrants its exclusion. There are certain well recognised exceptions to the audi alteram partem rule established by judicial decisions and they are summarised by S.A. de Smith in Judicial Review of Administrative Action, 2nd Edn. at pages 168 to 179. If we analyse these exceptions a little closely, it will be apparent that they do not in any way militate against the principle which requires fair play in administrative action. The word 'exception' is really a misnomer because in these exclusionary cases, the audi alteram partem rule is held inapplicable not by way of an exception to 'fair play in action', but because nothing unfair can be inferred by not affording an opportunity to present or meet a case. The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law 'lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation'. Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experimental test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the filed of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands .......'
11. If the arguments of the petitioners' counsel is scanned for its merit, it must be said that they never came forward with a case that they have not been heard under Rule 5(2) and Rule 5(3). And it is also their case that they have volunteered to present 100 plus documents in support of their objections. As stated already, no authority is required to hold an enquiry in the nature of a judicial proceeding to decide on the merit of the objections of the land owners or the quality of materials provided by them. From the Government's stand point, notwithstanding the merit of the objections of the land owners, there may still be a larger public interest that might outweigh the merit of the land owners' objection. The Government, vested with power of eminent domain, for advancing a larger public purpose cannot be restricted by the objections of the land owners alone. Within the limited space provided for pre-acquisition hearing contemplated under Rule 5, the respondent has fulfilled their statutory obligations. On this score, the petitioners are bound to fail W.P.27438 of 2014.
12. Turning now on the point of passing of the
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interim award, the respondents justify it on the strength of G.O.(Ms).No.88, Revenue [LA-I(1)] dated 21.02.2014, whereunder the Government took note of the advent of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30/2013), and directed an interim award be passed in terms of the Land Acquisition Act, 1894, and a final Award to be passed in terms of the Central Act Right to Fair Compensation Act. This G.O.(Ms).No.88 came for consideration in a batch of writ petitions in W.P.Nos:27550 to 27553/2014 and others, and this Court Vide its Common Order dated 05.08.2015 has held : '31. The Special Tahsildar (Land Acquisition), MRTS Phase-II Extension, Chennai 600 004, has passed the draft/interim award dated 15.09.2014 and while arriving at the quantum of interim compensation, the Special Tahsildar adopted the provisions of the old Act and for that purpose, has relied upon G.O.(Ms) No.88, Revenue [LA-I(1)] dated 21.02.2014, which he/she is under mandate to follow. Para 3(i) of the said Government Order would state among other things that the interim compensation should be determined based on the procedures already in vogue subject to additional compensation being paid as per the Right to Fair Compensation Act (new Act). In the considered opinion of the Court, in terms of Section 114(2) of the new Act, land acquisition proceedings already initiated under the old Act by invoking emergency provision is saved and admittedly, no award under Section 11 of the Act has been passed and the new Act came into force on 01.01.2014. Before taking possession, the Collector including Deputy Collector and any other officer specially designated by the Government to perform the functions of the Collector defined under section 3 (g) of the new Act, is bound to follow Section 40(3) of the new Act and thereafter, he is under mandate to follow Section 40(5) and other provisions relating to rehabilitation and resettlement.' 13. This Court is in agreement with the same finding. Necessarily all the interim awards passed by the land Acquisition Authority and now in challenge may not have legitimacy for their continued existence. 14. In conclusion, A) W.P. 27438 of 2014 is dismissed. B) W.P. Nos.1904 to 1908 of 2016 are allowed, and the Land Acquisition Authority is directed to issue fresh notice on the petitioners at the addresses given in the petitions, hold enquiry and quantify the compensation in terms of the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30/2013). C) No costs. Consequently, connected miscellaneous petitions are closed.