Madrasdated High Court · 2007

WP No.1482/2007:Writ petition filed under Article 226 of the Constitutionof India praying for the issue of a Writ of CertiorarifiedMandamus, calling for the entire records of the first respondent relating to the impugned Notification in S.O.No.1622(E), dated18.11.2005 of the first respondent and the records relating to the consequential award passed by the second respondent inRc.No.466/2005/NH dated 8.12.2006 in respect of the petitioner'sKalayana Mandapam situated on the lands comprised in T.S.Nos.14/1,14/2, 14/3 and 15/2 in Block No.43 to an Plot area of 3642 square metres at No.106, Koyambedu Village, Egmore-Nungambakkam Taluk, Chennai District as referred in the impugned award and quash the said impugned Notification in S.O.No.1622 (E) dated 18.11.2005 and the consequential award in Rc.No.466/2005/NH dated 8.12.2006 and consequently to forbear the official respondents from acquiring the portion of lands wherein the superstructures are put up in Survey Nos.14/1, 14/2, 14/3 and 15/2 in Block No.43 in KoyambeduVillage, Chennai District.WP No.1869/2007:Writ petition filed under Article 226 of the Constitutionof India praying for the issue of a Writ of CertiorarifiedMandamus, calling for the entire records of the first respondent relating to the impugned Notification in S.O.No.1622(E), dated18.11.2005 of the first respondent and the records relating to the consequential award passed by the second respondent inRc.No.466/2005/NH dated 8.12.2006 in respect of the petitioner'sland and building comprised in T.S.Nos.14/1, 14/2, 14/3 and 15/2in Block No.43 to an extent of 2164.5 square metres at No.106,Koyambedu Village, Egmore-Nungambakkam Taluk, Chennai District as referred in the impugned award and quash the said impugnedNotification in S.O.No.1622 (E) dated 18.11.2005 and the consequential award in Rc.No.466/2005/NH dated 8.12.2006 and consequently to forbear the official respondents from acquiring the portion of lands wherein the superstructures are put up in Survey Nos.14/1, 14/2, 14/3 and 15/2 in Block No.43 in KoyambeduVillage, Chennai District.

For petitioners in both WPs : Dr.Rajeev Dhavan, Senior Counsel for Mr.S.Manimaran. For Respondents-1&2 : Mr.V.T.Gopalan, in WP 1482/2007 and Addl. Solicitor General for Respondents 1to 3 in WP 1869/2007For Respondents-3&4 : Mr.P.Wilson, in WP 1482/2007 and Asst. Solicitor General for Respondent-4 in WP 1869/2007 https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERUnder the National Highways Development Project Phase-I,known as "Golden Quadrilateral", the Government of India proposed three Grade Separators, along National Highways 4, 45 and 205 in the City of Chennai, in three major arterial junctions, viz.,Kathipara (Guindy), Koyambedu and Padi, apart from a flyover in front of Chennai Air Port.

By a notification of the Government of India, Ministryof Shipping, Road Transport and Highways (Department of RoadTransport and Highways) bearing No.S.O.1130(E) dated 12.8.2005,published in the Gazette of India, Extraordinary, Part-II, Section3, Sub Section (ii) dated 12.8.2005, issued under Section 3-A (1)of the National Highways Act, 1956, (hereinafter referred to as the 'Act') the proposal to acquire several lands in KoyambeduVillage, Egmore-Nungambakkam Taluk, Chennai District was notified as being required for the public purpose of construction of free flow facilities along National Highway No.4. The substance of the said notification was published in one English Daily and oneVernacular Daily on 20.8.2005 and after considering the objections raised by some of the land owners, with reference to the remarks of the National Highways Authority of India, a declaration under Section 3-D (1) of the Act was issued by way of a notification inS.O.1622(E) dated 18.11.2005. The said declaration was also published in the Newspapers on 15.12.2005 and an award was passed on 8-12-2006.

The lands in New Survey Nos.14/1, 14/2, 14/3 and 15/2,measuring 1582 sq.mtrs., 286 sq.mtrs., 165 sq.mtrs., and 1083.5sq.mtrs., respectively, of Koyambedu Village, Egmore-NungambakkamTaluk, owned by six members of a family, formed part of the said acquisition. These six members of the family have joined together and filed a writ petition in W.P.No.1869 of 2007, challenging the declaration issued under Section 3-D (1) as well as the Awardpassed on 8.12.2006.

Two out of the six land owners, are the ManagingDirector and Director of a Private Limited Company by name ShriAndal Alagar Kalyana Mandapam Pvt. Ltd., which owns a KalyanaMandapam constructed on the aforesaid lands. Therefore, as the owner of the superstructure, the said Private Limited Company has also filed a writ petition in W.P.No.1482 of 2007, challenging the declaration dated 18.11.2005 issued under Section 3-D(1) as well as the Award passed on 8.12.2006.

I have heard Dr.Rajeev Dhavan, learned Senior Counselappearing for the petitioners in both the writ petitions, Mr.V.T.Gopalan, learned Additional Solicitor General andMr.P.Wilson, learned Asst. Solicitor General for Officialrespondents in both the writ petitions. https://hcservices.ecourts.gov.in/hcservices/

Before getting into the rival submissions, it is necessary to set out the list of dates and events, on which thereis no controversy. They are as follows:-12.08.2005Notification under section 3-A issued in Government Gazette20.08.2005Paper Publication of the substance of Notification made 12.09.2005Competent Authority writes to Project Director seeking for remarks on objections by landowners14.09.2005Remarks sent by NHAI to CompetentAuthority29.09.2005Proceedings of DRO u/s 3(C)(2) of NH Act18.11.2005Notification under Section 3-D(1) issued in Gazette20.12.2005Publication in News Papers of the declaration under Section 3-D(1)05.01.2006One of the writ petitioners write to the Competent Authority claiming that no notice was issued and no sketch was furnished and that therefore she was not aware of the portion of the land sought tobe acquired. By the said letter, the writ petitioner seeks information regarding the portion of the land sought to be acquired, along with a field map or sketch. She also encloses copies of documents of title.31.01.2006Legal notice issued by the Counsel for the writ petitioner reiterating her claim that no notice was issued and no sketch was furnished and that therefore she was not aware of the portion of the land sought tobe acquired. Hence, the counsel also seeks the field map and sketch.19.02.2006An interview allegedly given by the fourth respondent (Minister) to the Press, is published in a Tamil Daily Newspaper. As per the Newspaper report, the fourth respondent indicated that the CentralGovernment was prepared to reconsider if an alternative proposal is submitted by the petitioners. https://hcservices.ecourts.gov.in/hcservices/

03.03.2006Representation submitted by one of the writ petitioners along with an alternativePlan and a Technical Opinion from a retired Chief Urban Planner of the Chennai Metropolitan DevelopmentAuthority.01.11.2006Alternative proposal of the writ petitioner rejected by the Government of India 20.11.2006Request made by the writ petitioner for reconsideration of the matter08.12.2006Award passed by the CompetentAuthority 11.12.2006Letter of the Competent Authorityto collect the award amount28.12.2006Notice issued to Writ Petitioner u/s3-E(1) of the Act by the Competent Authority03.01.2007Petition for reconsideration also rejected05.01.2007Writ petitions filed7. In the background of the events short listed above, Dr.Rajeev Dhavan, learned Senior Counsel for the petitioners contended that the whole sequence of events, could be dissected into two parts, viz., (i) the events commencing from the notification under Section 3-A(1) (dated 12.8.2005) and culminating in a declaration under Section 3-D(1) (dated20.12.2005); and (ii) the events starting from the request of the petitioner for details, by her letter dated 5.1.2006 and her proposal dated 3-3-2006 for an alternative Plan, culminating in the rejection of the alternative proposal on 1.11.2006 and the Award passed on 8.12.2006.

In so far as the first part of the sequence of events is concerned, Dr.Rajeev Dhavan, learned Senior Counsel contended that the notification under Section 3-A(1) as well as the declaration under Section 3-D(1) are vitiated for two reasons, viz.,:-(a) that the names of the owners of these lands were wrongly mentioned in respect of Survey Nos.14/1 and 15/2, though they were correctly mentioned in respect of SurveyNos.14/2 and 14/3; and (b) that the precise details of the lands sought to be acquired, with reference to the sketch/field map and their portion as part of the whole, were not mentioned in the https://hcservices.ecourts.gov.in/hcservices/ notification, reducing the opportunity of submitting objections into an empty formality and a mockery.

In so far as the second part of the sequence of events is concerned, the learned Senior Counsel for the petitioners contended -(a) that there was a promissory estoppelon the part of the respondents in respect of the alternative proposal submitted by the petitioners; (b) that the petitioners developed alegitimate expectation, in view of the promises made by the fourth respondent that their KalyanaMandapam could be retained in tact; (c) that the invitation for an alternative proposal before the ensuingElections and the rejection of the alternative proposal after the Elections, exposed the malafide intentions on the part of the fourth respondent; and(d) that even while exercising their powers as administrative authorities, the respondents are duty bound to adopt the least invasive or least restrictive choice of measures, so that there is "proportionality" and"reasonableness" in the administrative action.

Per contra, Mr.V.T.Gopalan, learned AdditionalSolicitor General contended -(a) that the challenge to the acquisition proceedings, having been made after the property vested with the Central Governmentunder Section 3-D (2) and after the Award was passed under Section 3-G, was not maintainable; (b) that the proposal for an alternativePlan itself, having emanated after the declaration under Section 3-D(1) and after the property having vested with the CentralGovernment under Section 3-D(2), could not have been considered in the teeth of the provisions of the Act; (c) that the question of mala fides did not arise in as much as the very proposal for acquisition was mooted way back in the year 2004with the preparation of a Detailed ProjectReport, survey of the lands, floating of tendersetc., while one of the petitioners admittedly started a Political Party only in September,2005 and that therefore no one could have envisaged the future course of events at that stage; https://hcservices.ecourts.gov.in/hcservices/ (d) that there was no promise and that there could not have been a promise against statutory provisions and hence the question of promissory estoppel did not arise; and (e) that the course of events showed that there was no scope for legitimate expectation. Now let us consider the rival submissions one after another.I. CHALLENGE TO THE ACQUISITION ON THE GROUND OF VAGUENESS ANDLACK OF PARTICULARS:

Assailing the acquisition proceedings on the ground of vagueness and lack of particulars, Dr.Rajeev Dhavan, learnedSenior Counsel for the petitioners, drew my attention to the notification under Section 3-A(1) and pointed out that the notification did not mention the names of the owners of any of the lands sought to be acquired. In Column No.2 of the Schedule to the notification, the Survey Numbers are mentioned with or without the word "Part", Column No.3 mentioned the type of land as "Private or Government", Column No.4 mentioned the nature of land as "RyotwariManai" or "Village Natham" and Column No.5 mentioned the extent in square metres. There were no details in the notification regarding the portion of the land sought to be acquired, wherever only apart of the land was sought to be acquired. Therefore, the landowners, even if they had any notice regarding the acquisition, did not have any information regarding the portion of the landsought to be acquired.

Section 3-A(2) of the National Highways Act, 1956,hereinafter referred to as the 'Act', made it mandatory for every notification to contain a brief description of the land. TheSection reads as follows:-"3-A. POWER TO ACQUIRE LAND ETC.--(1) ........(2) Every notification under SubSection (1) shall give a brief description of the land. "

In order to drive home the aforesaid contention, the learned Senior Counsel for the petitioners, relied upon the decisions of the Supreme Court in Munshi Singh and Others vs. Union of India ((1973) 2 SCC 337)), State of Orissa vs. SridharKumar Mallik and Others ((1985) 3 SCC 697)), Om Prakash Sharma and Others vs. M.P.Audyogik Kendra Vikas Nigam and Others ((2005) 10SCC 306)) and Competent Authority vs. Barangore Jute Factory and Others ((2005) 13 SCC 477)).

In Munshi Singh case, the Supreme Court found on facts that the notification under Section 4(1) was vitiated by vagueness and indefiniteness of the public purpose for which the land was sought to be acquired. Therefore, the Supreme Court held in para-9 that if the opportunity to file objections and participate in https://hcservices.ecourts.gov.in/hcservices/ the enquiry under Section 5-A has any purpose and if it has to be given its full effect, the notification under Section 4(1) must give some definite indication or particulars of the purpose. Butwhile holding so, the Supreme Court also gave reasons for such aconclusion in the following words, in para-9:-"In the absence of such specific or particular purpose being stated the objector cannot file any proper or cogent objections under Section 5-A which he has a right to dounder that provision. We would accordingly hold that owing to the vagueness andindefiniteness of the public purpose stated in the notifications under Section 4(1) and in the absence of any proof that the appellants were either aware of or were shown the scheme or the Master Plan in respect of the planned development of the area in question the appellants were wholly unable to object effectively and exercise their right under Section 5-A of the Acquisition Act. "Thus, the Supreme Court was convinced on facts in the said case that the appellants therein were neither aware of nor shown the scheme or Master Plan in respect of planned development of the area in question.

In State of Orissa vs. Sridhar Kumar Mallik (1985 (3)SCC 697), the Supreme Court was concerned with a proclamation issued under Section 417-A (1-a) of the Orissa Municipal Act,1950. The proclamation was intended to extend the OrissaMunicipality Act, 1950, to an area other than a Municipality, leading to certain consequences such as the imposition of different kinds of taxes. Therefore, the law laid down therein that the proclamation must be precise and clear and must indicate with sufficient accuracy, the area intended to be notified, cannot be imported to a case of land acquisition.

In Om Prakash Sharma case (2005 (10) SCC 306), the notification under Section 4(1) of the Land Acquisition Act, 1894,was held to be invalid, on account of the fact that neither the survey numbers nor the names of the land owners were furnished in the notification. But in the present case, the survey numbers aswell as the extent are mentioned and hence it cannot be compared with Om Prakash Sharma case.

Heavy reliance was placed by the learned Senior Counselfor the petitioners, on the judgment in Competent Authority vs. Barangore Jute Factory (2005 (13) SCC 477). The facts of the said case come almost closer to the facts of the case on hand. That was also a case under the National Highways Act, 1956. As in the present case, the notification under Section 3-A(1) contained the details of the survey numbers, extent of land, classification of land etc. But many of the lands sought to be acquired in that case were only part of the whole land in certain survey numbers. Therefore, a contention was raised that when only a part of a https://hcservices.ecourts.gov.in/hcservices/ larger tract or larger chunk of land was sought to be acquired, the land owners will not be in a position to know which part was acquired and they would not be in a position to object to the acquisition effectively. Considering the scope of the requirement under Section 3-A(2) to give a brief description of land, the Supreme Court held in para-5 of the said judgment as follows:-"So far as the question whether the impugned notification meets the requirement of Section 3-A(1) of the Act regarding giving brief description of land is concerned, we have already shown that even though plot numbers of lands in respect of each mouza are given, different pieces of land are acquired either as whole or in part. Wherever the acquisition isof a portion of a bigger piece of land, thereis no description as to which portion was being acquired. Unless it is known as to which portion was to be acquired, the petitioners would be unable to understand the impact of acquisition or to raise any objection about user of the acquired land for the purposes specified under the Act or to make a claim for compensation. It is settled law that where astatute requires a particular act to be done ina particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning. In our view, the impugned notification fails to meet the statutory mandate. It is vague. The least that is required in such cases is that the acquisition notification should let the person whose land is sought to be acquired know what he is going to lose. The impugned notification in this case is, therefore, not in accordance with the law. "

Even in the present case, the notification under Section 3-A (1) shows that in respect of a few survey numbers, the entire land in the survey number is sought to be acquired and in respect of a few survey numbers, only a part of the land is sought to be acquired. The details of the portion of the land to be acquired and the portion of the land left out, are not indicated in the notification and hence the ratio laid down in the aforesaid decision of the Supreme Court appears, on a cursory glance, to be squarely applicable to the case on hand. But it is not so.

After laying down the law in para-5 (as extracted above), the Supreme Court, qualified the same with a rider inparas-6 and 7 as follows:-"6. While dealing with the question of brief description of land in the acquisition notifications, reference was made to some judgments of this Court where acquisition notifications under Section 4 of the LandAcquisition Act had come up for consideration https://hcservices.ecourts.gov.in/hcservices/ on account of challenge being levelled on the ground of vagueness of the notifications. Inmost of these cases, plan of the area under acquisition was made part of the notifications to show that the requirement of description of land was met. This leads us to inquire whether there was any site plan forming part of the impugned notification.7. The availability of a plan would have made all the difference. If there is aplan, the area under acquisition becomes identifiable immediately.

Thus, the acquiring authority failed at two levels in the said case before the Supreme Court, viz., (i) by failure to append a plan to the notification and (ii) by failure to produce aplan even at the time of hearing, so as to link the same with the notification. But in the present case, the notification published in the Gazette of India under Section 3-A (1) of the Act, contained the following information, as part of the notification itself, immediately before the schedule:-"The land plans and other details of the land covered under this notification are available and can be inspected by the interested persons at the Office of the Competent Authority. "

The notification dated 12.8.2005 gave a time limit of21 days for any person interested in the lands to raise objections under Section 3-C (1) of the Act and admittedly, the petitioners failed to avail the said opportunity. The petitioners did not avail either the opportunity to file objections in response to the notification dated 12.8.2005 or the opportunity to inspect the land plans and other details at the Office of the CompetentAuthority, despite an offer being made in the notification itself. Therefore, on facts, I find that the law laid down by the SupremeCourt in Competent Authority vs. Barangore Jute Factory (2005 (13)SCC 477), is not applicable to the case on hand. A similar view istaken by the Division Bench of this Court in The General Manager(Tech.) and Project Director, National Highways Authority of Indiavs. Mrs. Sridevi and Others (2006 (5) CTC 634), whereby the Division Bench distinguished the aforesaid decision of the SupremeCourt with reference to the specific statement made in the notification itself to the effect that the land plans and other details can be inspected by any person interested at the Office of the Competent Authority.

In any event, the petitioners may not be entitled to raise the issue of vagueness in notification, since the sequence of events show that the petitioners have understood what portions of the land are sought to be acquired. As observed by the Supreme https://hcservices.ecourts.gov.in/hcservices/ Court in para-8 of the aforesaid decision, the absence of a plan renders the right to file objections, nugatory. As a necessary corollary, clarity in the notification was always insisted, only for the purpose of making the opportunity to file objections meaningful. In this case, after having sent a letter dated5.1.2006, followed by a legal notice dated 31.1.2006, feigning ignorance of the details, the petitioners were able to submit an alternative proposal on 3.3.2006, with an expert opinion from aretired Chief Urban Planner of the Chennai MetropolitanDevelopment Authority. Thus, the petitioners appear to have understood precisely, what portion of the land was going to be acquired and what portion was going to be left out. Without such an understanding, the petitioners could not have submitted an alternative proposal with an expert opinion. Therefore, the absence of precise details in the notification, had not prejudiced the rights of the petitioners.

It is also pertinent to note that the petitioners have not chosen to challenge the notification under Section 3-A(1)dated 12.8.2005, but chosen to challenge only the declaration under Section 3-D(1) dated 18.11.2005 and the Award passed on8.12.2006. As a matter of fact, the petitioners have stated inpara-10 of the affidavit in support of W.P.No.1482 of 2007 that they have no objection for the acquisition of their vacant portion of land. After having said so, it is not open to the petitioners to contend that the notification under Section 3-A(1) is vitiated on account of vagueness.

As rightly contended by the learned AdditionalSolicitor General, the notification under Section 3-A(1) was issued on 12.8.2005, the declaration under Section 3-D(1) was issued on 18.11.2005 and the substance of the declaration under Section 3-D(1) was published in the Newspapers on 20.12.2005.Consequently, the property vested with the Central Government by virtue of Section 3-D(2) and the Award itself was passed on8.12.2006. The petitioners chose to come to Court only in January2007, after allowing the Award to be passed. The Supreme Court, in Municipal Corporation of Greater Bombay vs. Industrial DevelopmentInvestment Co. Pvt. Ltd and Others ((1996) 11 SCC 501)), traced the history of law relating to the maintainability of a challenge to the acquisition proceedings, after the Award is passed, fromparagraph-23 onwards and held in para-29 that the Court should be loath to quash the notifications, when there is inordinate delayin filing the writ petition and when all steps taken in the acquisition proceedings have become final.

In Municipal Council, Ahmed Nagar vs. Shah Hyder Beig,2000 (2) SCC 48, the Supreme Court held in para-17 as follows:-"17. In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of the recent cases. " https://hcservices.ecourts.gov.in/hcservices/

Though the aforesaid view that no writ petition can be entertained after the Award is passed, appears to have been explained in the latest decision relied upon by the learned SeniorCounsel for the petitioners in Competent Authority vs. BarangoreJute Factory (2005 (13) SCC 477), the same need not detain us forlong in view of the fact that the said decision is not applicable to the facts of the present case, for the reasons stated inparagraphs-20 and 21 above. II. PROMISSORY ESTOPPEL:

Coming to the second part of the sequence of events, commencing from the Newspaper report dated 19.2.2006, the learnedSenior Counsel for the petitioners contended that the very invitation for an alternative proposal from the Minister concerned(the 4th respondent herein), amounted to promissory estoppel. Drawing my attention to the judgment of the Supreme Court in Unionof India vs. Godfrey Philips India Ltd (AIR 1986 SC 806), the learned Senior Counsel contended that the doctrine of promissoryestoppel is well established in the Administrative Law of India. It represents a principle evolved by equity to avoid injustice. Inpara-9 of the said judgment, the Supreme Court explained the doctrine in the following words:-"The true principle of promissoryestoppel is that where one party has by his word or conduct made to the other a clear and unequivocal promise or representation which is intended to create legal relations or affect alegal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise or representation is made and it is in fact so acted upon by the other party, the promise or representation would be binding on the party making it and he would not be entitled to goback upon it, if it would be inequitable toallow him to do so, having regard to the dealings which have taken place between the parties. "

The learned Senior Counsel relied upon the decision in Delhi Cloth and General Mills Ltd vs. Union of India (1988 (1) SCC86), to drive home the point that it is not necessary to prove any damage, detriment or prejudice to the party asserting theestoppel. The Supreme Court held in the said case in para-24 as follows:-"24. The concept of detriment as we now understand it is whether it appears unjust, unreasonable or inequitable that the promisorshould be allowed to resile from his assurance or representation, having regard to what thepromisee has done or refrained from doing in reliance on the assurance or representation. " https://hcservices.ecourts.gov.in/hcservices/

The doctrine of promissory estoppel, according to the learned Senior Counsel for the petitioners, took a leap forward, in the decision of the Supreme Court in State of Punjab vs. NestleIndia Limited (2004 (6) SCC 465), where the Supreme Court held that the principle would be applied even when the promise is intended to create legal relations or affect a legal relationship which would arise in future. In para-29 of the said judgment, the Supreme Court made it clear that the Government was equally susceptible to the operation of the doctrine, in whatever area or field the promise is made – contractual, administrative or statutory.

There is no doubt about the applicability of the doctrine even to administrative or statutory functions of the Government. But there are well known pre-conditions for the applicability and the operation of the doctrine, which are spelt-out in para-28 of the judgment in Nestle India case. They are as follows:-"(1) a clear and unequivocal promise knowing and intending that it would be acted upon by the promisee; (2) such acting upon the promise by thepromisee so that it would be inequitable toallow the promisor to go back on the promise. "

Applying the above two pre-conditions, I do not find in this case that there was either a clear and unequivocal promise by the respondents including the 4th respondent or such an acting on the part of the petitioners as would make it inequitable to allow the respondents to go back on the same. Even if we go by the Newspaper report dated 19.2.2006, the statement that is attributed to the fourth respondent is that the Central Government was prepared to reconsider the matter, if any alternative proposal, which would not affect the other land owners, was submitted. Evenif such a statement is taken to be a promise, by stretching it alittle in favour of the petitioners, I do not find that the petitioners have acted on the promise in such a manner or altered their position to such an extent, as would make it inequitable to permit the respondents to go back on the same. All that the petitioners have done in response to the said statement, is to submit an alternative proposal. The position of the petitioners did not get altered on account of the promise and their acting on the promise and they did not become worse off on account of the said statement and the submission of an alternative proposal. There is no averment in the affidavits in support of the writ petitions that the petitioners altered their position, on account of the statement made by the fourth respondent, as reported in the Press on 19.2.2006. Therefore, I am of the considered view that there was neither a promise nor an estoppel in this case.III. LEGITIMATE EXPECTATION:- https://hcservices.ecourts.gov.in/hcservices/

Dr.Rajeev Dhavan, learned Senior Counsel for the petitioners contended that the promise made by the fourth respondent in his Press interview as reported in the Newspaper on19.2.2006, inviting alternative proposal, gave rise to alegitimate expectation on the part of the petitioners, even if the same is not taken to have conferred a legal right upon the petitioners. Therefore, it is the contention of the learned SeniorCounsel that the respondents were obliged to give a due consideration to the alternative proposal made by the petitioners and that the respondents were duty bound "to treat the citizen with fullest personal consideration".

In Madras City Wine Merchants' Association and Anothervs. State of Tamil Nadu (1994 (5) SCC 509), the Supreme Courtconsidered the doctrine of legitimate expectation at length, fromparagraph-43 onwards upto paragraph-48. In para-45 of the said judgment, the Supreme Court extracted the meaning of the term"Legitimate Expectation", as it appears in Halsbury's Laws of England as follows:-"A person may have a legitimate expectation of being treated in a certain way by an Administrative Authority even though he has no legal right in Private Law to receive such treatment".

After pointing out that such expectation may arise either from a representation or promise made by the authority, the Supreme Court pointed out in the said decision that though thereis an analogy between the doctrines of legitimate expectation and of estoppel, the two are distinct in that detrimental reliance upon the representation/promise was not a necessary ingredient ofa legitimate expectation.

It is no doubt true that the requirement of "due consideration" of a legitimate expectation forms part of the principle of non-arbitrariness, which is a necessary concomitant of the Rule of Law and the Government Departments are expected to treat the citizen with fullest personal consideration. But as held by the Supreme Court in Union of India vs. Hindustan DevelopmentCorporation and Others (1993 (3) SCC 499), which is also quoted with approval in Madras City Wine Merchants' Association case: "if a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well known grounds attracting Article 14 but a claim based on a mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider but the Court must lift the veil and see whether the decision is https://hcservices.ecourts.gov.in/hcservices/ violative of these principles warranting interference. "

The scope and ambit of the doctrine was again lucidly spelt out in para-35 of the judgment of the Supreme Court in Unionof India vs. Hindustan Development Corporation (1993 (3) SCC 499),in the following words:-"It follows that the concept of legitimate expectation is not the key which unlocks the treasury of natural justice and it ought not to unlock the gates which shuts the Court out of review on the merits, particularly when the element of speculation and uncertainty is inherent in that very concept. "

In the light of the principles underlying the doctrine of legitimate expectation as culled out from the decisions of the Supreme Court, it is clear that the petitioners should establish that there was no due consideration or fullest personal consideration or that there was a violation of principles of natural justice or that the action of the respondents was arbitrary, discriminatory, unfair or biased or that there was gross abuse of power, for enabling this Court to apply the doctrine to the benefit of the petitioners.

But a perusal of the records in this case shows that none of the above principles underlying the doctrine, has been violated. This is seen from the following sequence of events:-(a) The petitioners submit an alternative proposal on 3.3.2006, to the Central Government, with a copy to the Competent Authority and Special DistrictRevenue Officer (LA), National HighwaysSchemes, Kancheepuram. (b) The Competent Authority in turn, forwards the proposal to the Project Director, National Highways Authority of India, by aletter dated 13.3.2006.(c) The National Highways Authority of India, forwards the proposal to the Tamil NaduRoad Development Company Ltd., for an examination of the proposal, "with reference to the site conditions" and for submission of areport. (d) The Tamil Nadu Road DevelopmentCompany Ltd., which is actually a Companypromoted by the Tamil Nadu IndustrialDevelopment Corporation Ltd., and Infrastructure Leasing and Financial ServicesLtd., examines the proposal and issues a reply on 9.5.2006 to the National Highways Authorityof India.

The above flow of events shows that there has been adue consideration of the alternative proposal. The proposal was examined by an independent expert body namely Tamil Nadu RoadDevelopment Company Ltd (promoted by the Tamil Nadu IndustrialDevelopment Corporation Ltd., and Infrastructure Leasing and Financial Services Ltd.). Therefore, the rejection of the alternative proposal also does not appear to be arbitrary or unfair or violative of the principles of natural justice. Hence, Iam unable to accept the contention that there has been a violation of the doctrine of legitimate expectation.

Moreover, as held by the Supreme Court in Union of India vs. International Trading Co. And Another (2003 (5) SCC437):"The doctrines of promissory estoppeland legitimate expectation cannot come in the way of public interest, which has to prevail over private interest. "As a matter of fact, the Supreme Court cautioned that "for legal purposes, expectation is not the same as anticipation". Therefore, in my considered view, the petitioners have not made out a case for the invocation of the doctrine of legitimate expectation.IV. MALA FIDES:

In the affidavits filed in support of the writ petitions, it is contended by the petitioners that a StatePolitical Party was formed by one of the writ petitioners in September 2005 and that the popular support for the party was evergrowing as seen from the fact that even by contesting the AssemblyElections independently without any alliance in May 2006, it secured 8.33% of votes polled in the State. It is stated in the affidavits that on account of the impact created by the Party, the rival Political Parties decided to throttle and crush the Partyfloated by the petitioners even at the threshold. Taking cue from those averments, the learned Senior Counsel for the petitioners contended that the invitation for an alternative proposal was made by the fourth respondent on 19.2.2006, the General Elections to the State Assembly were held in May 2006, the Elections to the Local Bodies were held in October 2006 and the rejection of the alternative proposal submitted by the petitioners was made on1.11.2006. From this sequence of events, the learned SeniorCounsel wanted to draw an inference that the rejection of the alternative proposal amounted to mala fide exercise of power in asmuch as there was a long gap of about eight months in considering the alternative proposal and communicating the decision thereon. It is only during this period of eight months from 3.3.2006 (date of submission of alternative proposal) to 1.11.2006 (date of rejection of the same) that the Assembly Elections were held in May 2006 and Local Body Elections were held in October 2006. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the learned Senior Counsel for the petitioners contended that the reasons for rejection of the alternative proposal were obvious.

In support of his contention about the alleged malafide exercise of power, the learned Senior Counsel for the petitioners relied upon the decisions of the Supreme Court inS.Partap Singh vs. State of Punjab (AIR 1964 SC 72) and C.S.Rowjeevs. State of Andhra Pradesh (AIR 1964 SC 962).

In Partap Singh's case, after holding that indirect motive or purpose or bad faith or personal ill-will is not to beheld established except on clear proof thereof, the Supreme Courtaccepted that it is obviously difficult to establish the state ofa man's mind. Therefore, the Supreme Court concluded in para-8 of the said judgment that bad faith can be inferred from proved facts, in the following words:-"We must, however, demur to the suggestion that, mala fide in the sense of improper motive should be established only by direct evidence that is that it must be discernible from the order impugned or must be shown from the notings in the file which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. "

After holding so in Partap Singh's case, the SupremeCourt also added a word of caution in C.S.Rowjee's case, on the following lines:-"It is true that allegations of malafides and of improper motives on the part of those in power are frequently made and their frequency has increased in recent times. It is also somewhat unfortunate that allegations of this nature which have no foundation in fact, are made in several of the cases which have come up before the Supreme Court and otherCourts and it is found that they have been made merely with a view to cause prejudice or in the hope that whether they have basis in fact or not, some of it at least might stick. Consequently it has become the duty of the Court to scrutinise these allegations with careso as to avoid being in any manner influenced by them, in cases where they have no foundation in fact. "

The above note of caution appears to have percolated down in all subsequent decisions of the Supreme Court. InE.P.Royappa vs. State of Tamil Nadu (1974 (4) SCC 3), the SupremeCourt held that the burden of establishing mala fides is very heavy on the person who alleges it. In para-92 of the said decision, the Apex Court held that "the allegations of mala fides https://hcservices.ecourts.gov.in/hcservices/ are often more easily made than proved and the very seriousness of such allegations demands proof of a high order of credibility. "

Again in para-25 of its decision in State of Punjab vs.V.K. Khanna (2001 (2) SCC 330), the Apex Court held in no uncertain terms, as to what would constitute "mala fide" in the following words:-"The expression "mala fide" has a definite significance in the legal phraseology and the same cannot possibly emanate out of fanciful imagination or even apprehensions but there must be existing definite evidence of bias and actions which cannot be attributed to be otherwise bona fide – actions not otherwise bona fide, however, by themselves would not amount to be mala fide unless the same isin accompaniment with some other factors which would depict a bad motive or intent on the part of the doer of the act. " 47. In the backdrop of the law laid down by the SupremeCourt on the issue relating to mala fides, if we examine thepleadings of the petitioners, the documents available on record and the circumstances surrounding the examination of the alternative proposal submitted by the petitioners, it is clear that there has been no mala fide exercise of power.