IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05-02-2009 CORAM THE HONOURABLE MR.S.J.MUKHOPADHAYA ACTING CHIEF JUSTICE AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT APPEAL Nos.1341 TO 1343 OF 2008 K.Rajesh ...Appellant in W.A.No.1341/2008/Petitioner N.Abdul Bakhid ...Appellant in W.A.No.1342/2008/Petitioner K.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./ Respondents Appeals against the common order dated 07.11.2008 passed in W.P.Nos.11425 to 11427 of 2008 on the file of a learned single Judge of this Court Writ petitions filed under Article 226 of the Constitution of India to issue a writ of certiorari to call for the records relating to Section 4(1) Notification of the 1st Respondent Published in Government Gazette No.345 dated 10.12.2007 and the consequential notice dated 11.4.2008 in A1/17479/2007 under third respondent and quash the same in so far as the petitioner's are concerned. 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 T V.DHANAPALAN,J. Appellants are owners of the land in R.S.No.3815/4 (part) and R.S.No.3815/15 in Fort-Tondiarpet Taluk, Chennai District, measuring 700, 1180 and 780 sq.ft. On 11.04.2008, they were served Form 6 Notice, issued under Sections 9 (1) and 10 of the Land Acquisition Act,1894 (in short, "the Act"), whereupon they came to know that the respondents had initiated land acquisition proceedings against their lands for construction of sub-way near Korukkupet Railway level crossing. By the said notice, they were directed to appear in person on 02.05.2008 before the third respondent to submit a written statement, showing their interest in the 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 acquiring their lands along with others, invoking the urgency provision of Section 17 (1) of the Act. Aggrieved over the same, they filed writ petitions, challenging Section 4 (1) Notification and the consequential notices under Sections 9 (1) and 10. 2. The stand of the respondents was that the Government had proposed to construct a sub-way near Korukkupet railway level crossing on Thyagappa Chetty Street and Kannan Street in Tondiarpet Village, considering the traffic congestion, future need, abatement of pollution and fuel economy; notices under Sections 9 (1) and 10 were served on the appellants; in view of urgency, they had to resort to urgency provision; hence, Section 5-A enquiry was not mandatory; publication was effected both in Tamil and English dailies, namely, "Malai Malar" and "Business Standard" respectively on 14.12.2007 and 28.12.2007; the Government had called for a report from Corporation of Chennai and after obtaining the opinion of the expert body and analysing the technical feasibilities for construction of the overbridge and also studying all the ground realities, sanction was accorded and land acquisition proceedings were initiated, invoking the urgency clause. 3. On the above contentions, the learned single Judge dismissed the Writ Petitions, holding that the appellants had not made out any case for quashing Section 4 (1) Notification and also notices under Sections 9 (1) and 10. The said order of dismissal is under challenge in these appeals by the appellants. 4. The contentions of the learned Senior Counsel appearing for the appellants are three fold, the first of which being, as per Section 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 of which at least one should be in regional language and the Collector should cause public notice of the substance of such notification to be given at convenient places in the said locality and, in this case, the publication in regional language was given in "Maalaimalar" newspaper and the English publication in "Business Standard", which have no wide circulation and, therefore, the acquisition proceedings are in non-compliance of Section 4 (1). 5. The second contention is that in view of the construction of railway overbridge at Meenambal Nagar gate, the traffic has to be diverted only through the railway level crossing at Thyagappa Chetty Street, which is more than 5 kms., and, therefore, the respondents ought not to have invoked the urgency clause under Section 17 (1) of the Act. 6. The third contention is that the northern portion of the land in question is having number of business shops and on the southern 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 Division Bench decisions of this Court in : (i) V.Krishnan v. Government of Tamil Nadu, 2001 (4) CTC 108: "1.This Writ Appeal is preferred against the order dismissing the writ petition arising under Land Acquisition Act. Notification under Section 4 (1) which has been issued on 20.8.1992 and gazetted on 16.9.1992 followed by Section 6 declaration gazetted on 29.9.1993 are sought to be set aside. The ground of challenge is that the paper publication has been effected in two Tamil dailies viz., Madurai Mani and Guinness. We fully agree with the contention of the learned counsel for the appellant Mr.K.V.Sanjeev Kumar that the paper publication has not been made in the manner laid down under the Land Acquisition Act. In all fairness, the respondents ought to have published in leading English and Tamil dailies which are in circulation in that locality. This shall be taken note of by the Governmental authorities and hereafter all the land acquisition proceedings shall be published in leading English and Tamil dailies. This aspect shall be intimated by the Government Order to all the District Collectors and the Land Acquisition Officers 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 because of the delay caused by the appellant in approaching this Court after a period of one year from the date of Section 8 declaration and two years after Section 4 (1) notification, we are refraining ourselves from setting aside the land acquisition proceedings, more so in view of the fact that award has already been passed. While individual interest has to be taken into consideration, particularly in view of the right of guarantee envisaged under Article 300-ft of the Constitution, it is well settled law that public interest shall always prevail over the 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 of Rajasthan & Others, AIR 1997 Rajasthan 68, the Rajasthan High Court held that "the expression 'newspapers circulating in the locality' means newspapers having sufficient number of subscribers or readers in the locality. If, the number of subscribers or readers are meagre or none, then it could not be taken to be newspapers having circulation in that locality". We agree with the view of the Rajasthan High Court. In our opinion, the expression "newspapers circulating in the locality" means, the newspapers having reasonably wide circulation in that locality." iii) An unreported decision, dated 24.03.2006, in W.A.No.261 of 2006 and batch in State of Tamil Nadu and Others v. K.Ponnammal and Others : "8. Coming to the last contention, namely lack of proper newspaper publication, the learned counsel for the appellants drew our attention to the affidavit filed in the appeal proceedings. In this affidavit, which is sworn to by the Member Secretary, Chennai Metropolitan Development Authority, it is asserted that "Dinakaran", "Makkal Kural" and "Kumari Murasu" are newspapers approved by the Registrar, Newspapers of India, and also approved 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 newspapers are in wide circulation in the area where the lands were acquired. The learned senior counsel for the writ petitioners also fairly conceded that "Dinakaran" and "Makkal Kural" are having wide circulation. However, he maintained that "Kumari Murasu" has very little or no circulation in the said area. It is pertinent to note that this objection was not raised by the writ petitioners at any point of time during the acquisition proceedings. This point was also not originally raised in the writ petitions, but subsequently, an affidavit came to be filed alleging that there was lack of publicity. It is not disputed before us that the land owners have participated in the enquiry conducted under Section 5-A of the Act and did not raise any objection at that time in the matter of publication in the newspapers. The newspapers in question are approved newspapers and all the legal advertisements of the Government, Local Bodies and Co-operatives are published in these newspapers. Considering all these facts, we are of the view that there is no substance in the grievance of the writ petitioners that there was lack of proper paper publication." 8. We have heard the learned Government Pleader on the above contentions and also gone through records. 9. With regard to the first contention of the learned Senior Counsel for the appellants, it is seen that in compliance of Section 4 (1), notification was given in two dailies, one in regional language and the other in English, namely, Business Standard. On seeing the print order details of Business Standard, it comes to light that the said newspaper has wide circulation in various places such as Ahmedabad, Chennai, Bangalore, Mumbai, Hyderabad, Kolkata, Delhi, Lucknow etc. and it is also indicated that Chennai includes Kochi, wherein Chennai circulation has 16,794 copies and Chennai city alone has been shown as 9000 copies. Further, as regards the Business Standard-ABC details, Chennai has been shown having a circulation of 10,625 copies for the months from January,2007 to June,2007 and 11,279 copies for the months from July,2007 to December,2007, which details make one known that the said English daily is in circulation of the locality. Therefore, we find that the substance of notification, as per the Section, has been properly published and there is no procedural https://hcservices.ecourts.gov.in/hcservices/ violation in making such publication. Hence, this contention fails. 10. For the second contention, it is common knowledge that in metropolitan cities such as Chennai, traffic congestion and pollution are matters of prime concern, to be looked into. In order to overcome the said problems, the Government thought it fit to construct a railway overbridge and also a sub-way near Korukkupet railway level crossing, invoking Section 17 (1). In the given situation, it is quite relevant to refer to Section 17 (1), which reads thus : "17. Special powers in case of urgency.- (1) In case of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1), take possession of any land needed for public purpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances." 11. The above provision makes it lucid that in case of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1), take possession of any land needed for public purpose and such land shall thereupon vest absolutely in the Government, free from all encumbrances. 12. It is also provided in Section 17 (2) that the Collector shall not take possession of any building or part of a building without giving to the occupier thereof at least forty eight hours' notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property 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 any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the notification under section 4, sub-section (1). 14. A circumspection of the facts and materials reveals that the acquisition of the land in question is for a public purpose, which is not in dispute. The competent authority can invoke the urgency 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 the competent authority, if so directs, may make a declaration under Section 6 in respect of the land at any time after the date of the publication of the notification under Section 4 (1). While invoking the urgency power under Section 17, dispensation of Section 5-A is contemplated and the same is within the domain of the authorities. Therefore, the appellants cannot have any grievance over the lands in question, which are acquired for a public purpose on urgent basis. The only aspect to be seen is that as per section 17 (4) whether the declaration under Section 6 has been made after the publication of notification under Section 4 (1). In this regard, it is to be seen that 4 (1) Notification was issued on 10.12.2007 and Section 6 Declaration was made on 20.12.2007, from which it is clear that proper compliance had been made by the authorities while proceeding with the acquisition of lands and, therefore, there was no infirmity in the acquisition proceedings. 15. As for the third contention, it is to be stated that the railway overbridge is the need of the public. While going in for the acquisition of land by the authorities for a public purpose, after obtaining the opinion of the expert body and after analysing all the technical and other feasibilities of the execution of the overbridge in question, the appellants has no right to ask for a diverted route, when the acquisition is meant for a particular public purpose, and this Court cannot sit on appeal over the expert opinion and the appellants have no manner of right also to question 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 the cases wherein normal procedure in acquiring the lands by following Sections 4 (1) and 5-A was followed and no urgency clause under Section 17 was invoked. In other words, in the said cases, the compliance of mandatory provisions under Sections 4 (1) and 5-A and 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 of overbridge in that area, in order to avoid traffic congestion, the authorities had invoked urgency clause under Section 17 (1), which was pursuant to the compliance of the procedure contemplated under Section 4 (1). Therefore, the decisions relied upon by the Senior Counsel have no direct application to the case of the appellants. The said aspect was properly considered and dealt with by the learned single Judge, while deciding the writ petitions. 17. Under the circumstances, finding no infirmity in the order passed by the learned single Judge, we dismiss these Writ Appeals. No costs. sd/- Asst.Registrar /true copy/ dixit Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. 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 1343/2008 RSM (CO) GSK 13.02.2009. https://hcservices.ecourts.gov.in/hcservices/