N.Abdul Bakhid v. Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 05-02-2009CORAMTHE HONOURABLE MR.S.J.MUKHOPADHAYAACTING CHIEF JUSTICEANDTHE HONOURABLE MR.JUSTICE V.DHANAPALANWRIT APPEAL Nos.1341 TO 1343 OF 2008K.Rajesh ...Appellant in W.A.No.1341/2008/PetitionerN.Abdul Bakhid ...Appellant in W.A.No.1342/2008/PetitionerK.Jayaprakash ...Appellant in W.A.No.1343/2008/Petitioner-vs-1. Government of Tamil Nadu rep.by its Secretary to Government, Municipal Administration and Water Supply Department, Fort St.George, Chennai-600 009.2. The District Collector, Chennai District, Rajaji Salai, Chennai-1.3. Special Tahsildar (Land Acquisition), Fort-Tondiarpet Taluk, Chennai-3. ...Respondents in all W.As./RespondentsAppeals against the common order dated 07.11.2008 passed inW.P.Nos.11425 to 11427 of 2008 on the file of a learned singleJudge of this Court Writ petitions filed under Article 226 of theConstitution of India to issue a writ of certiorari to call for therecords relating to Section 4(1) Notification of the 1st RespondentPublished in Government Gazette No.345 dated 10.12.2007 and theconsequential notice dated 11.4.2008 in A1/17479/2007 under thirdrespondent and quash the same in so far as the petitioner's areconcerned. https://hcservices.ecourts.gov.in/hcservices/ For appellants : Mr.K.Alagirisami, Senior Advocate, for Mr.M.Kamalanathan.For respondents : Mr.Raja Kalifulla, Government Pleader.J U D G M E N TV.DHANAPALAN,J.Appellants are owners of the land in R.S.No.3815/4 (part) andR.S.No.3815/15 in Fort-Tondiarpet Taluk, Chennai District,measuring 700, 1180 and 780 sq.ft. On 11.04.2008, they were servedForm 6 Notice, issued under Sections 9 (1) and 10 of the LandAcquisition Act,1894 (in short, "the Act"), whereupon they came toknow that the respondents had initiated land acquisitionproceedings against their lands for construction of sub-way nearKorukkupet Railway level crossing. By the said notice, they weredirected to appear in person on 02.05.2008 before the thirdrespondent to submit a written statement, showing their interest inthe lands and the superstructure thereon. Thereafter, on enquiry,they noticed that the first respondent had passed G.O.Ms.No.173,dated 10.12.2007, according administrative sanction for acquiringtheir lands along with others, invoking the urgency provision ofSection 17 (1) of the Act. Aggrieved over the same, they filedwrit petitions, challenging Section 4 (1) Notification and theconsequential notices under Sections 9 (1) and 10.2. The stand of the respondents was that the Government hadproposed to construct a sub-way near Korukkupet railway levelcrossing on Thyagappa Chetty Street and Kannan Street in TondiarpetVillage, considering the traffic congestion, future need, abatementof pollution and fuel economy; notices under Sections 9 (1) and 10were served on the appellants; in view of urgency, they had toresort to urgency provision; hence, Section 5-A enquiry was notmandatory; publication was effected both in Tamil and Englishdailies, namely, "Malai Malar" and "Business Standard" respectivelyon 14.12.2007 and 28.12.2007; the Government had called for areport from Corporation of Chennai and after obtaining the opinionof the expert body and analysing the technical feasibilities forconstruction of the overbridge and also studying all the groundrealities, sanction was accorded and land acquisition proceedingswere initiated, invoking the urgency clause.3. On the above contentions, the learned single Judgedismissed the Writ Petitions, holding that the appellants had notmade out any case for quashing Section 4 (1) Notification and alsonotices under Sections 9 (1) and 10. The said order of dismissal isunder challenge in these appeals by the appellants.4. The contentions of the learned Senior Counsel appearing forthe appellants are three fold, the first of which being, as perSection 4 (1), notification should be published in the official https://hcservices.ecourts.gov.in/hcservices/ gazette and in two dailies, having circulation in that locality ofwhich at least one should be in regional language and the Collectorshould cause public notice of the substance of such notification tobe given at convenient places in the said locality and, in thiscase, the publication in regional language was given in"Maalaimalar" newspaper and the English publication in "BusinessStandard", which have no wide circulation and, therefore, theacquisition proceedings are in non-compliance of Section 4 (1). 5. The second contention is that in view of the constructionof railway overbridge at Meenambal Nagar gate, the traffic has tobe diverted only through the railway level crossing at ThyagappaChetty Street, which is more than 5 kms., and, therefore, therespondents ought not to have invoked the urgency clause underSection 17 (1) of the Act. 6. The third contention is that the northern portion of theland in question is having number of business shops and on thesouthern side there is a Government poramboke land and, therefore,the diversion ought to have been considered by the authorities. 7. Learned Senior Counsel has placed reliance upon DivisionBench decisions of this Court in :(i) V.Krishnan v. Government of Tamil Nadu, 2001 (4) CTC 108:"1.This Writ Appeal is preferredagainst the order dismissing the writpetition arising under Land AcquisitionAct. Notification under Section 4 (1)which has been issued on 20.8.1992 andgazetted on 16.9.1992 followed by Section6 declaration gazetted on 29.9.1993 aresought to be set aside. The ground ofchallenge is that the paper publicationhas been effected in two Tamil dailiesviz., Madurai Mani and Guinness. We fullyagree with the contention of the learnedcounsel for the appellant Mr.K.V.SanjeevKumar that the paper publication has notbeen made in the manner laid down underthe Land Acquisition Act. In all fairness,the respondents ought to have published inleading English and Tamil dailies whichare in circulation in that locality. Thisshall be taken note of by the Governmentalauthorities and hereafter all the landacquisition proceedings shall be publishedin leading English and Tamil dailies.This aspect shall be intimated by theGovernment Order to all the DistrictCollectors and the Land AcquisitionOfficers of the State of Tamilnadu.Coming to the case on hand, even though https://hcservices.ecourts.gov.in/hcservices/ the relief could be granted, but becauseof the delay caused by the appellant inapproaching this Court after a period ofone year from the date of Section 8declaration and two years after Section 4(1) notification, we are refrainingourselves from setting aside the landacquisition proceedings, more so in viewof the fact that award has already beenpassed. While individual interest has tobe taken into consideration, particularlyin view of the right of guaranteeenvisaged under Article 300-ft of theConstitution, it is well settled law thatpublic interest shall always prevail overthe individual interest."(ii) Secretary to Government of Tamil Nadu and Another v.J.Sivaprakasam and Others, 2005 (1) L.W.799 :"9. In Rajmal & Others Vs.State ofRajasthan & Others, AIR 1997 Rajasthan68, the Rajasthan High Court held that"the expression 'newspapers circulatingin the locality' means newspapers havingsufficient number of subscribers orreaders in the locality. If, the numberof subscribers or readers are meagre ornone, then it could not be taken to benewspapers having circulation in thatlocality". We agree with the view of theRajasthan High Court. In our opinion, theexpression "newspapers circulating in thelocality" means, the newspapers havingreasonably wide circulation in thatlocality."iii) An unreported decision, dated 24.03.2006, in W.A.No.261of 2006 and batch in State of Tamil Nadu and Others v. K.Ponnammaland Others :"8. Coming to the last contention,namely lack of proper newspaperpublication, the learned counsel for theappellants drew our attention to theaffidavit filed in the appeal proceedings.In this affidavit, which is sworn to bythe Member Secretary, Chennai MetropolitanDevelopment Authority, it is asserted that"Dinakaran", "Makkal Kural" and "KumariMurasu" are newspapers approved by theRegistrar, Newspapers of India, and alsoapproved by the Government of Tamil Nadu.In fact, all the legal advertisements of https://hcservices.ecourts.gov.in/hcservices/ the Government, Local Bodies and Co-operatives are published in these dailies.It is also asserted that these newspapersare in wide circulation in the area wherethe lands were acquired. The learnedsenior counsel for the writ petitionersalso fairly conceded that "Dinakaran" and"Makkal Kural" are having widecirculation. However, he maintained that"Kumari Murasu" has very little or nocirculation in the said area. It ispertinent to note that this objection wasnot raised by the writ petitioners at anypoint of time during the acquisitionproceedings. This point was also notoriginally raised in the writ petitions,but subsequently, an affidavit came to befiled alleging that there was lack ofpublicity. It is not disputed before usthat the land owners have participated inthe enquiry conducted under Section 5-A ofthe Act and did not raise any objection atthat time in the matter of publication inthe newspapers. The newspapers inquestion are approved newspapers and allthe legal advertisements of theGovernment, Local Bodies and Co-operativesare published in these newspapers.Considering all these facts, we are of theview that there is no substance in thegrievance of the writ petitioners thatthere was lack of proper paperpublication." 8. We have heard the learned Government Pleader on the abovecontentions and also gone through records.9. With regard to the first contention of the learned SeniorCounsel for the appellants, it is seen that in compliance ofSection 4 (1), notification was given in two dailies, one inregional language and the other in English, namely, BusinessStandard. On seeing the print order details of Business Standard,it comes to light that the said newspaper has wide circulation invarious places such as Ahmedabad, Chennai, Bangalore, Mumbai,Hyderabad, Kolkata, Delhi, Lucknow etc. and it is also indicatedthat Chennai includes Kochi, wherein Chennai circulation has 16,794copies and Chennai city alone has been shown as 9000 copies.Further, as regards the Business Standard-ABC details, Chennai hasbeen shown having a circulation of 10,625 copies for the monthsfrom January,2007 to June,2007 and 11,279 copies for the monthsfrom July,2007 to December,2007, which details make one known thatthe said English daily is in circulation of the locality.Therefore, we find that the substance of notification, as per theSection, has been properly published and there is no procedural https://hcservices.ecourts.gov.in/hcservices/ violation in making such publication. Hence, this contentionfails.10. For the second contention, it is common knowledge that inmetropolitan cities such as Chennai, traffic congestion andpollution are matters of prime concern, to be looked into. In orderto overcome the said problems, the Government thought it fit toconstruct a railway overbridge and also a sub-way near Korukkupetrailway level crossing, invoking Section 17 (1). In the givensituation, it is quite relevant to refer to Section 17 (1), whichreads thus :"17. Special powers in case ofurgency.- (1) In case of urgency, wheneverthe appropriate Government so directs, theCollector, though no such award has beenmade, may, on the expiration of fifteendays from the publication of the noticementioned in Section 9, sub-section (1),take possession of any land needed forpublic purpose. Such land shall thereuponvest absolutely in the Government, freefrom all encumbrances." 11. The above provision makes it lucid that in case ofurgency, whenever the appropriate Government so directs, theCollector, though no such award has been made, may, on theexpiration of fifteen days from the publication of the noticementioned in Section 9, sub-section (1), take possession of anyland needed for public purpose and such land shall thereupon vestabsolutely in the Government, free from all encumbrances.12. It is also provided in Section 17 (2) that the Collectorshall not take possession of any building or part of a buildingwithout giving to the occupier thereof at least forty eight hours'notice of his intention so to do, or such longer notice as may bereasonably sufficient to enable such occupier to remove his movableproperty from such building without unnecessary inconvenience. 13. It is significant to note the provision under Section 17(4), wherein it is specifically provided that in the case of anyland to which, in the opinion of the appropriate Government, theprovisions of sub-section (1) or sub-section (2) are applicable,the appropriate Government may direct that the provisions ofSection 5-A shall not apply, and, if it does so direct, adeclaration may be made under Section 6 in respect of the land atany time after the date of the publication of the notificationunder section 4, sub-section (1).14. A circumspection of the facts and materials reveals thatthe acquisition of the land in question is for a public purpose,which is not in dispute. The competent authority can invoke theurgency provision under Section 17 on the land in question,whereupon the enquiry under Section 5-A, inviting objections, is https://hcservices.ecourts.gov.in/hcservices/ not necessary. What is required under the Section is that thecompetent authority, if so directs, may make a declaration underSection 6 in respect of the land at any time after the date of thepublication of the notification under Section 4 (1). Whileinvoking the urgency power under Section 17, dispensation ofSection 5-A is contemplated and the same is within the domain ofthe authorities. Therefore, the appellants cannot have anygrievance over the lands in question, which are acquired for apublic purpose on urgent basis. The only aspect to be seen is thatas per section 17 (4) whether the declaration under Section 6 hasbeen made after the publication of notification under Section 4(1). In this regard, it is to be seen that 4 (1) Notification wasissued on 10.12.2007 and Section 6 Declaration was made on20.12.2007, from which it is clear that proper compliance had beenmade by the authorities while proceeding with the acquisition oflands and, therefore, there was no infirmity in the acquisitionproceedings.15. As for the third contention, it is to be stated that therailway overbridge is the need of the public. While going in forthe acquisition of land by the authorities for a public purpose,after obtaining the opinion of the expert body and after analysingall the technical and other feasibilities of the execution of theoverbridge in question, the appellants has no right to ask for adiverted route, when the acquisition is meant for a particularpublic purpose, and this Court cannot sit on appeal over the expertopinion and the appellants have no manner of right also toquestion as to what would be the appropriate line of project and,therefore, this contention also has no merit.16. The decisions cited by the learned Senior Counsel were thecases wherein normal procedure in acquiring the lands by followingSections 4 (1) and 5-A was followed and no urgency clause underSection 17 was invoked. In other words, in the said cases, thecompliance of mandatory provisions under Sections 4 (1) and 5-Aand the subsequent declaration were strictly adhered to, whereas,in this case, the acquisition was for a public purpose and,considering the object of the project for construction ofoverbridge in that area, in order to avoid traffic congestion, theauthorities had invoked urgency clause under Section 17 (1), whichwas pursuant to the compliance of the procedure contemplated underSection 4 (1). Therefore, the decisions relied upon by the SeniorCounsel have no direct application to the case of the appellants.The said aspect was properly considered and dealt with by thelearned single Judge, while deciding the writ petitions.17. Under the circumstances, finding no infirmity in the orderpassed by the learned single Judge, we dismiss these Writ Appeals.No costs.sd/-Asst.Registrar/true copy/dixitSub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government, Government of Tamil Nadu, Municipal Administration and Water Supply Department, Fort St.George, Chennai-600 009.2. The District Collector, Chennai District, Rajaji Salai, Chennai-1.3. Special Tahsildar (Land Acquisition), Fort-Tondiarpet Taluk, Chennai-3.+ 3 c.cs. to Mr. M. Kamalanathan, Advocate. S.R.No.5081. W.A.Nos.1341 TO 1343/2008RSM (CO)GSK 13.02.2009.