IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 21.04.2011 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NOS.23969 OF 2001 AND 24042 & 23620 OF 2003 AND CONNECTED MISCELLANEOUS PETITIONS 1.Chinnammal 2.A.V.Damodaran 3.Devendran 4.V.Krishnaswamy .. Petitioners (in W.P.No.23969/2001) 1.P.Ranganthan 2.Kuppammal .. Petitioners (in W.P.No.24042/2003) P.Munusamy .. Petitioner (in W.P.No.23620/2003) Versus 1.Government of Tamil Nadu Rep.by its Secretary Housing and Urban Development Department, Chennai – 600 009. 2.The Special Tahsildar Land Acquisition Outer Ring Road Project Unit – IV Chennai Metropolitan Development Authority, Egmore Chennai – 600 008. .. Respondents (in all W.Ps.) PRAYER IN W.P. NO.23969 OF 2001: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records on the file of the respondents relating to Selection 4(1) Notification published on 17.02.1999 in the Tamil Nadu Government Gazette in G.O.Ms.No.36 of Housing and Urban Development Department UD 3(2) 3rd February 1999 and G.O.Ms. Housing and Urban UD 3(2) under Section 6 Declaration published in the extra ordinary gazette in Part II Sec II dated 21.02.2000 thereby to quash Section 4 (1) Notification and Section 6 Declaration of the Land Acquisition Act relating to the Survey Nos.43/1B, measuring 0.46.5 hectares, No.53/2B2 measuring 0.12.0 hectares, No.55/1A measuring 0.05.0 hectares or measuring about 1.50 acres at Amudurumedu Village, Thiruvallur District, Poonamallee Taluk. https://hcservices.ecourts.gov.in/hcservices/ PRAYER IN W.P. NO.24042 OF 2003: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records on the file of the respondents relating to Selection 4(1) Notification published in the Tamil Nadu Government Gazette dated 02.08.2000 in G.O.Ms.No.280 of Housing and Urban Development Department UD 3(2) 6th July 2000 and Section 6 Declaration published in the Tamil Nadu Government Gazette, Part II Sec 2 in G.O.Ms.No.348, dated 08.08.2001 Housing and Urban UD 3(2) (8th August 2001) thereby to quash Section 4(1) Notification and Section 6 Declaration of the Land Acquisition Act relating to the agricultural land in Survey No.144/3B, measuring 0.05.0 hectares at 16, Karunakaracheri Village, Thiruvallur District, Poonamallee Taluk. PRAYER IN W.P. NO.23620 OF 2003: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records on the file of the respondents relating to Selection 4(1) Notification published in the Tamil Nadu Government Gazette dated 02.08.2000 in G.O.Ms.No.280 of Housing and Urban Development Department UD 3(2) 6th July 2000 and Section 6 Declaration published in the Tamil Nadu Government Gazette, Part II Sec 2 in G.O.Ms.No.348, dated 08.08.2001 Housing and Urban UD 3(2) (8th August 2001) thereby to quash Section 4(1) Notification and Section 6 Declaration of the Land Acquisition Act relating to the petitioner's agricultural land in Survey No.139/1, measuring 0.29.5 hectares at 16, Karunakaracheri Village, Thiruvallur District, Poonamallee Taluk. For Petitioners : Shri.David Tyagaraj (in all W.Ps.) For Respondents : Shri.S.Ramasamy, AAGI (in all W.Ps.) for Shri.M.Dhandapani Special Government Pleader C O M M O N O R D E R Considering the common issues involved in all the Writ Petitions, coupled with the fact that the purpose of acquisition being the same, a common order is passed. Facts in brief: 2.The Chennai Metropolitan Development Authority has been constituted under Section 9-C, Chapter II-A of the Tamil Nadu Town and Country Planning (Amendment) Act, 1973. Considering the enormous growth and development of Chennai Corporation, an ambitious programme has been envisaged by the Chennai Metropolitan Development Authority by way of a comprehensive traffic and transportation study. The said exercise has been made keeping in view of the explosion in urban population, ever growing migration to the city of Chennai as well as https://hcservices.ecourts.gov.in/hcservices/ the consequent increase in economic activities. 3.Therefore, it was proposed by the Chennai Metropolitan Development Authority to have a Mass Rapid Transit System, Electrified Suburban Train System, construction of Combined Railway Terminal, Inner Circular Corridor Railway, along with the construction of Inner and Outer Ring Roads. A proposal was mooted for the creation of Outer Ring Road to a length of 62.30km, width of 122m (400') wide providing for 3 lane dual carriageway with service lanes on both sides. Lands have been acquired for the above said public purpose in II phases. The Government of Tamil Nadu has also approved the proposal for the acquisition of lands. It has also given permission by way of a prior approval for the subsequent notifications which are the subject matters of W.P.Nos.24042 and 23620 of 2003, since the proceedings in W.P.No.23969 of 2001 have been initiated prior to the amendment made to the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') by way of introduction of Section 3(f) of the Act which has been notified on 08.12.1999 and the notification was made as early as on 03.02.1999. Facts in W.P.No.23969 of 2001: 4.In pursuant to the Government Order passed in G.O.Ms.No.381, Housing and Urban Development Department, dated 25.05.1993, approving the proposal for the formation of Outer Ring Road, a notification was issued under Section 4(1) of the Act by the first respondent in G.O.Ms.No.36, Housing and Urban Development Department, dated 03.02.1999. It was published in the Government Gazette on 17.02.1999 and in the Tamil Dailies on 24.02.1999. The locality publication was made on 26.02.1999. The enquiry under Section 5-A of the Act was conducted on 07.04.1999. The petitioners have been heard after obtaining the remarks from the requisitioning body. The remarks of the requisitioning body have also been communicated to the petitioners prior to the further hearing under Section 5-A of the Act. The petitioners attended the enquiry on 07.04.1999 and a final order was passed on 02.06.1999. 5.The declaration under Section 6 of the Act was approved by the Government in G.O.Ms.No.89, Housing and Urban Development Department, dated 21.02.2000. After issuing notices under Section 9 (3) and 10 of the Act, an award was passed on 15.12.2000. The Writ Petition was filed by the petitioners challenging the declarations on 22.11.2001 and the same was taken on file on 06.12.2001. Facts in W.P.Nos.24042 and 23620 of 2003: 6.After the prior approval by the first respondent under Section 3(f) of the Act, a notification was passed in G.O.Ms.No.280, Housing and Urban Development Department, dated 06.07.2000. It was published in the Government Gazette on 02.08.2000. The paper https://hcservices.ecourts.gov.in/hcservices/ publications have been effected on 11.08.2000 and 12.08.2000 in the local Tamil Dailies and the locality publication was made on 14.08.2000. The enquiry under Section 5-A of the Act was conducted on 29.09.2000, 03.10.2000, 04.10.2000 and 05.10.2000. The petitioners in both the Writ Petitions have appeared before the enquiry. The first petitioner in W.P.No.24042 of 2003 by name, P.Ranganathan has appeared and expressed no objection to the acquisition but claimed only an enhanced compensation. The statement of the said P.Ranganathan has been adopted by the second petitioner in W.P.No.24042 of 2003. The formalities regarding obtaining the remarks, consequential communication and holding the enquiry have been duly complied with. A declaration was passed under Section 6 of the Act in G.O.Ms.No.348, Housing and Urban Development Department dated 08.08.2001. 7.After the issuance of notices under Section 9(3) and 10, an award enquiry was conducted on 19.06.2003, 23.06.2003 and 25.06.2003 respectively. The petitioners appeared for the award enquiry and thereafter, an award was passed in Award No.2 of 2003 dated 05.08.2003. The Writ Petitions were filed by the petitioners on 28.07.2003 and it was taken up for hearing on 28.08.2003. 8.The respondents filed vacate stay petitions in the year 2004. They also filed petitions for fixing early dates for hearing the Writ Petitions. All the three Writ Petitions were directed to be posted for hearing after six weeks for final disposal by the order dated 24.08.2007. Thereafter, applications have been filed in all the three Writ Petitions on 02.03.2011 seeking to raise additional grounds. These applications have been filed at the time when the matters are posted for final disposal. Submissions of the petitioners: 9.Shri.David Tyagaraj, learned counsel appearing for the petitioners in all the three Writ Petitions submitted that there is no prior approval obtained as required under Section 3(f) of the Act. It is further submitted that considering the valuation of the proposed acquisition covering the notification ought to have been passed by the Special Commissioner and Commissioner of Land Administration, Chennai – 5, as provided under Section 4(1) of the Act and not the first respondent. The remarks of the requisition body have not been given to the petitioners. There are no proper publications as they have been effected in two Tamil Dailies instead of one in English and another in Tamil. The enquiry has not been conducted properly and there is a non-application of mind. There is no prior approval before passing the award as required under Section 11(iii) of the Act. The learned counsel has raised the questions regarding the non-application of mind by the Enquiry Officer, the notification passed under Section 4(1) of the Act without prior approval as per Section 3(f)(vi) of the Act and absence of prior https://hcservices.ecourts.gov.in/hcservices/ approval under Section 11(iii) of the Act by way of raising additional grounds. In support of the said contentions, the learned counsel has relied upon the following judgments: "STATE OF PUNJAB vs. GURDIAL SINGH [(1980) 2 SCC 471] PALANI NAICKER vs. STATE OF TAMIL NADU [1991 (2) LAND LAW REPORTER 486] MADHYA PRADESH HOUSING BOARD vs. MOHD.SHAFI [(1992) 2 SCC 168] H.M.T. HOUSE BUILDING COOPERATIVE SOCIETY vs. SYED KHADER [(1995) 2 SCC 677] K.PACHIAPPAN & OTHERS vs. STATE OF TAMIL NADU AND ANOTHER [2003 WRIT L.R. 237] REVATHY MOHAN @ DHANALAKSHMI vs. STATE OF TAMIL NADU [2003 (1) LACC 540] RAMANUJAM, N.D. vs. THE STATE OF TAMIL NADU [2006 (1) CTC 51] KOLAMMAL vs. STATE OF TAMIL NADI [AIR 2007 MADRAS 258] A.UNNIKRISHNAN vs. STATE OF TAMIL NADU [(2008) 5 MLJ 1315] R.NATARAJAN vs. THE UNION OF INDIA [2010 (6) CTC 337] SRI THIRUWALEESWARAR TEMPLE vs. THE STATE OF TAMIL NADU [1984 T.N.L.J. 74] KADIRVELU MUDALIAR vs. STATE OF TAMIL NADU [1987 WRIT L.R.182] THIRUVALEESWARAR TEMPLE vs. STATE OF TAMIL NADU [1990 I MLJ 142] A.VEMBULI NAICKER vs. STATE OF TAMIL NADU [1992 LACC 17] C.PONNUSAMY vs. GOVERNMENT OF TAMIL NADU [1997 (I) CTC 212] K.KUMAR NAICHER vs. STATE OF TAMIL NADU AND OTHERS [1998 WRIT L.R. 417]" Accordingly, the learned counsel submitted that the Writ Petitions will have to be allowed. Submissions of the respondents: 10.The learned Additional Advocate General appearing for the respondents submitted that this Court has to see the overwhelming public interest involved which has been affected by the delay at the instance of the petitioners. The Writ Petitions as filed are not maintainable in law and facts, as they have been filed after the passing of the awards. There is no explanation for such a huge delay in approaching this Court. The discretionary and extraordinary relief available under Section 226 of the Constitution of India shall not been extended to the petitioners. All the Writ Petitions filed challenging the proceedings have been dismissed. The project has been started and except the petitioners herein and the petitioners in W.P.No.9784 and 9785 of 2002, possession has been handed over. The respondents have followed the due procedure and the procedure contemplated under Section 3(f) of the Act has been complied with by obtaining prior approval. The Government Order has been passed under Section 4(1) of the Act by taking into consideration of the relevant materials available on record. https://hcservices.ecourts.gov.in/hcservices/ 11.It is further submitted that the petitioners have not raised any substantial objection in the 5-A enquiry. All of them have been heard by affording sufficient opportunities. There is no basis to hold that the first respondent did not have the jurisdiction to pass the order by way of a notification under Section 4(1) of the Act. The prior approval as required under Section 11 of the Act has been obtained, the very same grounds raised in a batch of Writ Petitions in W.P.No.761 of 2010 etc. dated 02.12.2010 have been repelled by this Court. Considering the hardship caused to the general public, all the Writ Petitions will have to be dismissed. The learned Additional Advocate General has made reliance upon the judgment of this Court in W.P.No.761 of 2010, etc. dated 02.12.2010 and submitted that the Writ Petitions will have to be dismissed. Discussions:- 12.Before taking up the Writ Petitions for adjudication, records were directed to be produced and the learned counsel for the petitioners Shri.David Tyagaraj was allowed to peruse them to satisfy himself as to whether the procedures contemplated under Section 3(f) and 11(iii) of the Act have been complied with or not. The learned counsel was also permitted to make his submissions based upon the same. Maintainability of the Writ Petitions: 13.The facts narrated above would clearly indicate that the award has been passed in W.P.No.23969 of 2001 on 15.12.2000 and in other two cases on 05.08.2003. Admittedly, W.P.No.23969 of 2001 has been filed on 22.11.2001 and it has been taken up for hearing after numbering on 06.12.2001. Similarly, the Writ Petitions in W.P.Nos.24042 and 23620 of 2003 were also filed much after the passing of the award. There is absolutely no explanation on the part of the petitioners as to why they have not approached this Court immediately after the passing of the declaration issued under Section 6 of the Act. 14.It is trite law that once an award is passed, it is not open to the parties to approach this Court to challenge the violations in the procedure adopted in passing the notification under Section 4(1) of the Act and the resultant declaration under Section 6 of the Act. Therefore, in law the petitioners are barred from challenging the alleged irregularities said to have been committed prior to the passing of the award. Another question for consideration is as to whether the petitioners can be permitted to raise the additional grounds at the time of hearing the Writ Petitions? The petitioners have raised three contentions in the additional grounds such as non-application of mind while passing the order under Section 5-A of the Act, not obtaining the prior approval before the issuance of the notification and not obtaining the prior approval before https://hcservices.ecourts.gov.in/hcservices/ passing the award. In the opinion of this Court, it is not quite open to the petitioners to raise all these contentions for the first time. By raising these contentions, the petitioners are trying to get over the delay, laches and acquiescence on their part. 15.Therefore, this Court is of the view that the Writ Petitions are not maintainable in law and facts for having approached this Court much after the passing of the award which they were quite aware of and raising the additional grounds at the time of hearing the Writ Petitions cannot be permitted. It is pertinent to note that the Writ Petitions have been filed in the year 2001 and 2003 respectively. Applications have been filed by the respondents for vacating the interim stay in the year 2004. Thereafter, they have filed applications for fixing early dates for the disposal of the Writ Petitions. This Court has fixed the date in the year 2007 after a period of six weeks. There is absolutely no explanation from the petitioners for not filing any application for additional grounds till that point of time. The petitioners cannot be permitted to conduct a roving enquiry in a proceeding initiated under the Act. Hence, this Court is of the view that the Writ Petitions are liable to be dismissed on the ground of delay, laches and acquiescence. 16.The Honourable Apex Court in P.CHINNANNA vs. STATE OF ANDHRA PRADESH [(1994) 5 SCC 486]. Considering the applications filed belatedly by raising additional grounds was pleased to hold as follows: "11. We may, however, state that though we have examined the fresh ground of challenge in respect of Section 6(1) declaration raised on behalf of the appellants nearly seven years after it had become available to them, the same had been done solely to decide on the scope and applicability of the first proviso to Section 6 (1) and its explanation, inserted into the L.A. Act by the L.A. (Amendment) Act, 1984. Such examination cannot, therefore, be understood as laying down that notwithstanding the lapse of time or laches in raising a legal ground in a proceeding under Article 226 of the Constitution or a proceeding under Article 136 of the Constitution there is an obligation on the part of the court concerned to examine such fresh ground. In fact, in relation to acquisition proceeding involving acquisition of land for public purposes, the court concerned must be averse to entertain writ petitions involving the challenge to such acquisition where there is avoidable delay or laches since such acquisition, if set aside, would not only involve enormous https://hcservices.ecourts.gov.in/hcservices/ loss of public money but also cause undue delay in carrying out projects meant for general public good. When a fresh ground of attack to acquisition proceedings, even if it involves purely a question of law, its entertainment cannot be governed by a principle different from that which governs entertainment of writ petitions before the High Court or proceedings arising therefrom before this Court under Article 136 of the Constitution." 17.The said ratio of the Honourable Apex Court was also followed subsequently in STATE OF T.N. vs. L.KRISHNAN [(1996) 1 SCC 250]. Therefore, considering the ratio laid down by the Honourable Apex Court, this Court is of the view that the additional grounds raised cannot be permitted at this stage. 18.The law regarding a challenge made to an acquisition proceedings after the award has been well settled in AFLATOON vs. LT. GOVERNOR OF DELHI [(1975) 4 SCC 285] wherein, a Constitutional Bench of the Honourable Apex Court has held in the following manner: "Assuming for the moment that the public purpose was not sufficiently specified in the notification, did the appellants make a grievance of it at the appropriate time? If the appellants had really been prejudiced by the non- specification of the public purpose for which the plots in which they were interested were needed, they should have taken steps to have the notification quashed on that ground within a reasonable time. They did not move in the matter even after the declaration under Section 6 was published in 1966. They approached the High Court with their writ petitions only in 1970 when the notices under Section 9 were issued to them." 19.This settled position of law has been repeatedly reiterated very often by this Court as well as the Honourable Apex Court in the subsequent pronouncements. 20.Recently, in TAMIL NADU HOUSING BOARD vs. M.MEIYAPPAN [(2011) 1 MLJ 171] considering the settled position of law, it has been held by the Honourable Apex Court that in view of the inordinate delay in approaching this Court, the discretion of Article 226 cannot be exercised while challenging the proceedings. It is further to the seen that the petitioners have not even challenged the award and therefore in the absence of the same, the Writ Petitions are not maintainable. Therefore, considering the facts involved and applying the ratio laid down by the Honourable Apex Court, this Court is of https://hcservices.ecourts.gov.in/hcservices/ the considered view that the Writ Petitions filed are to be dismissed on the ground of delay, laches and acquiescence. Discussions on merits: 21.Even though this Court has held in the precluding paragraphs that the Writ Petitions are not maintainable, in view of the submissions made by the learned counsel appearing for the petitioners, this Court is inclined to consider the same on merits as well. The records produced by the learned Additional Advocate General as perused by the learned counsel appearing for the petitioners would show that the prior approval as required under Section 3(f) of the Act has in fact been obtained. Therefore, in view of the same, the additional ground sought to be raised by the learned counsel for the petitioners falls to the ground. A faint attempt has been made by the learned counsel for the petitioners that the procedure has not been properly followed under Section 3(f) of the Act. This Court is afraid that such a contention cannot be raised, having not raised any such plea throughout the land acquisition proceedings and also before this Court. Even in the additional grounds raised it has been merely stated that the prior approval has not been obtained under Section 3 (f) and 6 of the Act. Further, this Court is satisfied that the respondents have complied with the same. 22.In so far as the challenge made to the 5-A enquiry is concerned, it is seen from the records that the objections of the petitioners are very general in nature. The Land Acquisition Officer has considered the said objections and rejected the same. Records also indicate that they have been heard fully. Statements have been obtained, remarks have been communicated and further hearings have been conducted. In fact in W.P.No.24042 of 2003, the petitioners did not have any objections for the acquisition. Therefore, this Court finds that there is no procedural violation and non application of mind as alleged by the petitioners. 23.In so far as the contentions regarding the publications of the local newspapers are concerned, there is no procedure under the Act which mandates that one publication has to be in the English language. Further, the petitioners have not shown any prejudice that would be caused to them by the publication made in the local dailies. The question as to whether those dailies are widely circulated or not is a question of fact which this Court cannot go into. Applying the principle of substantial compliance, this Court does not find any material to show the likelihood of prejudice that has been caused to the petitioners. It is trite law that a procedural law will have to give way for substantial justice. Such a hyper technical contention cannot be countenanced as the petitioners did attend the enquiry under Section 5-A of the Act. Further, the issue raised by the petitioners has been concluded by the Honourable Apex Court while deciding the decision of this Court, in SPECIAL DEPUTY COLLECTOR vs. https://hcservices.ecourts.gov.in/hcservices/ J.SIVAPRAKASAM [(2011) 1 MLJ 788], wherein it has been held in the following manner: "20.This leads us next to the consequences of publication of the notification in two newspapers having reasonably wide circulation and consequences of bona fide publication of the notification in two newspapers which do not have a wide circulation in the locality. 23.As both Madurai Mani and Kadiravan were sold and circulated in Chennai and as a good chunk of their total circulations was in Chennai, it may not be possible to hold that the said newspapers were not 'regional daily newspapers circulating in the locality'. Nor will it be possible to invalidate the entire acquisition on the ground that the publication in the said two newspapers did not fulfill requirement of publication in 'newspapers circulating in that locality'. But, if the respondents are able to assert and demonstrate that as a consequence, they were denied the opportunity of participating in the enquiry under Section 5-A, or show any other disadvantage, they may be able to achieve the object of showing that the acquisition proceedings were vitiated insofar as their lands were concerned. 24.In this case, respondents 1 to 11 have challenged the acquisition. Respondents 5 to 11 specifically admitted that they received a notice dated 09.06.1999 from the appellant herein calling upon them to appear before him in the Section 5-A enquiry under the Land Acquisition Act. Respondents 5 to 11 further admitted that they enquired and found that the lands were notified and immediately thereafter, filed their objections to the acquisition proposals. Therefore, the publication of the notification under Section 4(1) of the Act, in two newspapers which did not have wide circulation in the locality, did not affect respondents 5 to 11 in any manner as they had notice of the proposals for acquisition and participated in the enquiry under Section 5-A of the Act. 26.It is significant to note that there is