IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.04.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.1497 of 2011 and M.P.Nos.1 to 3 of 2011 Kodanad Estate represented by its Manager Mr.S.Natarajan Kodanad, Kothagiri Taluk, Nilgiris District. .. Petitioner Vs. 1.The Principal Secretary to the Government, Rural Development & Panchayat Raj Department, State of Tamil Nadu, Secretariat, Chennai-9. 2.The District Collector, The Nilgiris District, Udhagamandalam. 3.The Revenue Divisional Officer, Connoor. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent made in Tamil Nadu Government Gazette extraordinary in G.O.Ms.No.114, Rural Development and Panchayat Raj Department (Ma.AThi.4) Department, dated 31.12.2010 and the paper publication made in Dinamalar issue dated 11.1.2011 (Coimbatore) and relating to acquisition of lands of Kodanad Tea Estate and to quash the same as null and void. For Petitioner : Mr.Gurukrishnakumar for A.Navaneetha Krishnan For Respondents : Mr.P.S.Raman, Advocate General assisted by Mr.M.Dhandapani, Spl.G.P. ORDER The short question that arises for consideration in this writ petition is whether the action of the respondent State in resorting to the provisions of the Land Acquisition Act, 1894 in acquiring the land belonging to the petitioner Estate for an https://hcservices.ecourts.gov.in/hcservices/ alleged public purpose in providing road for the residents of Anna Nagar and Kamaraj Nagar hamlets in Kodanad village, Kothagiri Taluk, Nilgiris District and by invoking Sections 17(1) and 17(4) of the Land Acquisition Act through the impugned notification, dated 31.12.2010 and published in the government gazette on the same day are legal? 2.By the impugned notification, the State Government had invoked urgency clause under Section 17(1) and also dispensed with the enquiry under Section 5A by invoking Section 17(4) of the Land Acquisition Act. When the writ petition came up on 24.1.2011, this court had directed notices to be issued to the respondents and had granted an interim stay. Subsequently, the interim stay stood extended and when the matter came up, this court after referring to the order passed by the Supreme Court on 15.5.2008, directed the topo sketch of the area to be produced. Thereafter, on 15.2.2011, this court admitted the writ petition and had extended the interim order and also directed the matter to be listed before the appropriate Court. Thus, it was listed before this Court. 3.Aggrieved by the interim order, the respondent State has filed M.P.No.3 of 2011 for vacating the interim order together with supporting counter affidavit filed by the first respondent on behalf of all the respondents, dated 2.2.2011. Thereafter, the matter was heard on 7.3.2011 and 11.3.2011 and orders were reserved. It is at this stage, the petitioner has filed a rejoinder, dated 11.3.2011 and that a further time was taken by the learned Special Government Pleader to file a reply to the rejoinder, which was filed on 30.3.2011. The petitioner was also directed to circulate a copy of the order passed by the Supreme Court, dated 18.3.2011 as well as the paper book filed before the Supreme Court by the State in the Special Leave Appeal (Criminal) No.3817 and 3818 of 2008 which was also done. 4.Heard the arguments of Mr.Gurukrishnakumar, learned Counsel for Mr.A.Navaneedakrishnan, learned counsel appearing for the petitioner and Mr.P.S.Raman, learned Advocate General assisted by Mr.Dhandapani, learned Special Government Pleader for respondents. 5.The case relating to an access to the road by the residents of Anna Nagar and Kamaraj Nagar hamlets situated adjacent to the petitioner's Estate has a chequered history. Therefore, it is necessary to refer to briefly the history of events which had led to the filing of the present writ petition. 6.The road in which the residents of two hamlets were having access is passing through the petitioner Estate. The road is situated in the patta land belonging to the petitioner Estate. It runs through the Estate approximately for a length of 2.5 Kms. From time to time, the petitioner Estate had put restrictions on the use of vehicles and timings for access to the road. The Grama Sabha of the villages had requested the Government to acquire the road and to entrust it to the panchayat in its meeting held on 21.7.2007. https://hcservices.ecourts.gov.in/hcservices/ But, however, the Sub Divisional Magistrate-cum-Assistant Collector, Coonoor had initiated proceedings under Section 133 of the Code of Criminal Procedure and had issued directions to the petitioner to keep open the Estate road for all times for all persons including vehicles without any obstruction or hindrance on the said road. The order passed by the Sub Divisional Magistrate came to be a subject matter of attack in Criminal Revision Case Nos.1486 and 1504 of 2007. The criminal revision came to be disposed of by a final order passed by this court on 28.4.2008 (the judgment since reported in 2008 (2) MLJ (Crl.) 402 Mad (Manager, Kodanad Estate, Kothagiri Taluk, Nilgiris District rep by R.Ravichandran Vs. Sub Divisional Magistrate and the Assistant Collector, Coonoor, Nilgiris District)). 7.In that case, this Court in paragraphs 12.2 to 12.7 had recorded the following findings: "12.2.In the present case, the action of the SDM in taking cognizance of a complaint which did not address any question of any imminent danger or obstruction of a pathway, ought not to have taken note of by him. In addition, the petition signed by the villagers, which was addressed to the Grama Sabha and the Grama Sabha's resolution sent to the Collector wanted the State to find a permanent solution. There is no imminent threat of any obstruction had arisen. 12.3.A conjoint reading of all the Exhibits including the oral and documentary evidence clearly shows that the people of the two hamlets wanted only a free access to their vehicles and also the road being opened during night times without restriction and, therefore, there was no obstruction of passage as such for the public to use the pathway. The obstructions complained were in existence as stated by the deponents right from the year 1995 when the present management took over the Estate. It is as old as 12 years and hence, there was no occasion to use the emergency power under Section 133 Cr.P.C. by the SDM. 12.4.In any event, the complaint that the toll is being collected is not an issue coming within Section 133 Cr.P.C. and it is open to the private owners to collect toll to allow the Estate Road to be used each time when a vehicle was taken and it establishes that practice was done on licence granted by the owners of the property. If it is a dispute over licence conditions, then, it only relates to a civil right between the parties and the parties ought to have been relegated to the Civil Court's jurisdiction. https://hcservices.ecourts.gov.in/hcservices/ 12.5.In the present case, even by the admission of the parties, the road was a private patta land and the public were allowed on a permissive usage of the road over the period and it does not create any public right overnight. Even assuming that such right is claimed in their favour, they should have approached the Civil Court to establish their right to free passage and ought not to have invoked the proceedings under Section 133 Cr.P.C. Further, while the complainants themselves have demanded for providing a public road, by resorting to land acquisition proceedings, in the evidence, they cannot turn back and say that they have a right to use the private road freely and resort to proceedings under Section 133 Cr.P.C. In the guise of exercising an emergency power under Section 133 Cr.P.C., the authorities cannot create new rights in favour of the so-called complainants. 12.6.In any event, after the preliminary order was passed by the SDM and when an objection was raised in the form of an interim response that the property was a private property, the SDM should have referred the matter for a Civil Court's decision under Section 137(2) Cr.P.C. and must have stayed his own proceedings. On the contrary, in the impugned order, there is no reference to the application of mind with reference to the exercise of discretion under Section 137(2) Cr.P.C. When a valuable right of a owner of a property is at stake, merely because there is a group demand or a mob desire, the power under Section 133 Cr.P.C. cannot be used or rather misused. 12.7.The evidence placed before the SDM does not disclose that there is any imminent danger to public tranquillity or peace and the complaint made by the local people is only a petition to the State to acquire the property." 8.But, even thereafter considering the plight of the residents, in paragraph 14, this court gave the following advice to the petitioner Estate, which reads as follows: 14.A word of advice:- It is also needless to mention that the petitioner Estate will not deny access to the villagers of Anna Nagar and Kamaraj Nagar to use the pathway as it was done in the last 13 years with such restrictions and conditions as it may impose for utilising the Estate Road considering that it is the only access to the outside world." https://hcservices.ecourts.gov.in/hcservices/ 9.Notwithstanding the findings rendered therein, the Sub Divisional Magistrate-cum-Assistant Collector filed a Special Leave Appeal before the Supreme Court in Special Leave to Appeal (Criminal)No.3817 and 3818 of 2008. The Supreme Court while ordering special leave had passed the following interim order on the SLP on 15.5.2008, which reads as follows: "Whatever directions given by the learned Single Judge with regard to the use of the pathway running to the Estate be maintained until further orders." 10.Subsequently, on 3.1.2011, the Supreme Court on finding that the matters were ready for final disposal, had directed the interim order to continue till the disposal of the main SLP. During the pendency of the SLPs, a third party appeal was also filed in Special Leave to Appeal (Criminal)No.4138 to 4141 of 2008 by one Mani. Also a writ petition was filed under Article 32 in W.P.(Civil) Mo.232 of 2008. All the three matters were grouped together. In the SLP filed by the Sub Divisional Magistrate-cum- Assistant Collector with the support of the respondent State, he had raised several grounds. Out of which the following are relevant for the purpose of this writ petition and they read as follows: "III....that the said road has been used as a pathway for the past 40 years by the villagers resulting in accrual of public right of free access in their favour. ... XV.That the High Court erred in holding that only land acquisition proceedings ought to have been resorted to and ought not to have invoked section 133 of Cr.P.C cannot be countenanced in law as it defeats the very object of legislating section 133 of Cr.P.C." ..... XXXIV.That the High Court erred in holding in paragraph 4.1 that the service road is situated in Kodanad limits and that it is a patta land belonging to the estate. Such finding of the High Court is not based on any materials." 11.Even after the final interim order was passed on 3.2.2011 and after orders were reserved in this writ petition, on 18.3.2011, the respondents moved the Supreme Court. The Supreme Court had passed the following order on 18.3.2011, which reads as follows: "Heard the counsel appearing for the petitioners as also the counsel appearing for the Kodanad Estate. The High Court in the impugned judgment and order had made certain observations with regard to the free passage through the road to the effect that the respondent-Estate would not deny access to the villagers of Anna Nagar and Kamaraj Nagar to use the https://hcservices.ecourts.gov.in/hcservices/ road as it was done in the last 30 years with such restrictions and conditions as could be imposed for utilising the said road, considering the fact that the same is the only access to the outside world for those villagers. We are informed that the State of Tamilnadu has initiated appropriate steps for acquisition of the land in question where the road exists but the urgency clause which is invoked by the State has been challenged by the respondent no.1 herein and the said matter is pending before the High Court. We express no opinion with regard to the aforesaid case, which is pending in the High Court. However, there is an allegation in the present petitions that restrictions are being put by the respondent no.1 in the free movement and use of the pathway during the night making it impossible for the villagers to have access to the outside world during the night in case there is some emergency. Counsel for the Respondent although disputed the aforesaid fact yet in the facts and circumstances, we deem it appropriate to pass following further orders. Considering the said fact, we pass an order that the free passage through the said road shall be allowed during the day and night and the respondent No.1 shall not put any lock or create any obstruction in the movement of the traffic through the aforesaid road even during the night. However, it shall be open to the respondent No.1 to deploy watchman during the course of the night and there shall be a police picket at the place so as to restrict any movement of unruly elements using the road during the night." 12.On the one hand, the respondent State was contending before the Supreme Court that the pathway is not a private road, but a public pathway and that the petitioner is not entitled to prevent the access to the residents of the two hamlets. They are also not justified in putting restrictions to the movement of the residents of those two hamlets. Though in the criminal revision petition, this court after recording that it is a private road and the Estate is entitled to regulate the movement within the road, but yet this court in the interest of residents of the two hamlets had advised the petitioner Estate to continue the earlier practice so that the residents are not put to any difficulties. The Supreme Court in its first interim order took note of the said advice and made it as a part of its direction. Subsequently, the same interim order was also made absolute. Notwithstanding the same, the respondent State was able to get much wider order even on 18.3.2011 even while the cases are pending before this court and that the https://hcservices.ecourts.gov.in/hcservices/ criminal revision was not finally disposed of. 13.But, however it is seen from the records that the respondent officials were continuing to indulge in one proceeding or other without showing any legal justification. On 10.1.2009, the Tahsildar, Kothagiri had issued a proceedings and informed the petitioner Estate that the Principal Commissioner-cum-Commissioner for Land Administration by a letter, dated 6.10.2008 had directed to sub divide Survey Nos.138/3, 139/1, 155/3, 155/4, 159 and 160/1,4,5 and 6 to an extent of 0.87.5 hectares for the purpose of acquiring the land by invoking the emergency clause and therefore, in order to permit the officials of the Department, they had requested the Estate Management to give permission to inspect the same vide letters dated 14.11.2008 and 5.12.2008. Since those letters have come back unserved, the petitioner Estate was informed that on 20.1.2009, the officials will be visiting the Estate for the purpose of measuring and sub dividing various survey numbers indicated in the proceedings. Challenging the said communication, the petitioner Estate had filed W.P.No.2172 of 2009 before this Court. In that writ petition, when notice was ordered, the Tahsildar, Kothagiri had filed an affidavit, dated Nil. On the basis of the said affidavit, this court by an order dated 12.2.2009 closed that writ petition. It is necessary to refer to the following observations made in paragraphs 2 and 3 of the order, which reads as follows: "2.Today, on notice, the learned Government Pleader has filed an affidavit sworn by the Tahsildar, Kothagiri, wherein in paragraph 3, it has been stated as follows:- "In respect of the notice for inspection issued in Na.Ka.A3.No.11919-08 dated 10.01.2009 impugned in the Writ Petition, it is submitted that this respondent will not re-issue the notice or carry out any field inspection of the land proposed to be acquired before the publication of notification under Section 4(1) of the Land Acquisition Act, 1894 and any further action would be pursued in accordance with law". 3.Recording this statement of the Tahsildar, Kothagiri, this writ petition is closed as no further orders are necessary....." 14.Even after this order, no steps were taken by the respondents for more than 1-1/2 years. But all of a sudden on 31.12.2010, they had issued the impugned notification invoking the urgency clause as well as emergency clause for acquiring the land and also to dispense with the enquiry under Section 5A. In the notification issued in G.O.Ms.No.114, Rural Development and Panchayat Raj Department, dated 31.10.2010, it was stated as follows: https://hcservices.ecourts.gov.in/hcservices/ Whereas, it appears to the Government of Tamil Nadu that the Lands specified in the schedule below and situated in the Kodanad Village, Kotagiri Taluk, The Nilgiris District is needed for the public purpose of developing of as public road to Anna Nagar and Kamaraj Nagar Hamlets, by Rural Development and Panchayat Raj Department. Notice to that effect is hereby given to all those to whom it may concern in accordance with the provision of sub-section (1) of Section 4 of the Land Acquisition Act, 1894 (Central Act 1 of 1894); Whereas the residents of the Hamlets of Anna Nagar and Kamaraj Nagar of Kodanad Village Panchayat in kotagiri Panchayat Union, in the Nilgiris District, have been using the road in the land specified in the Schedule below over a long period of time; And whereas the said land is in the possession of private owners and it is reported that the residents of the said Hamlets experience much difficulties in using the road in the above land and they are not allowed to use the road during night. Such restrictions have caused much suffering and hardship to the residents of the Hamlets, particularly during emergencies such as deliveries, accidents, etc., as the land specified below is required for public purpose urgently in exercise of powers conferred by the sub-section (1) of the Section 17 of the said Act, the Governor of Tamil Nadu hereby orders to acquire the said land; Now, therefore, in exercise of the powers conferred by sub-section (2) of Section 4 of the said Act, the Governor of Tamil Nadu hereby authorizes the Revenue Divisional Officer, Coonoor and his staff and workmen to exercise the powers conferred by the said sub-section (2). In exercise of powers conferred by sub- section (4) of Section 17 of the said Act, the Governor of Tamil Nadu hereby orders that Section 5-A of the said Act has been dispensed to this case in view of urgency as the same involves the right of several members of the public for ingress and egress to their Hamlets." 15.After setting out various survey numbers of the land, the total extent of acquisition was indicated as 1.31.34 hectares. Nowhere in the notification, the respondent State had referred to the earlier proceedings taken under Section 133 Cr.P.C. and various orders passed by this court as well as by the Supreme Court in this regard. It is attacking the attempt made by the respondents to take over the land in which private road is situated and also invoking https://hcservices.ecourts.gov.in/hcservices/ the urgency clause as well as emergency clause including dispensation of Section 5A enquiry, the petitioner Estate has filed the present writ petition. 16.The contention raised by Mr.Gurukrishnakumar, learned counsel for the petitioner was that there was no necessity for invoking either urgency clause or emergency clause and that the order was issued with mala fide intentions. The attempt by the respondents was to give continuous trouble to the Estate in one form or other. There was no public purpose involved in the acquisition especially when the residents of the two hamlets were allowed to use the road . The restrictions if at all that was imposed was in the interest of safety and security of the Estate. When proceedings were initiated as early as in the year 2007, after four years invoking the urgency clause was illegal and that the power has been exercised in a mechanical fashion. Even if there was any urgency as required under Sections 17(1) and 17(2), there was no scope for dispensing with the enquiry under Section 5A which is a valuable right of the land owner which cannot be curtailed while acquiring the land belonged to the Estate. Since the criminal revision petitions are pending before the Supreme Court, it was wrong on the part of the respondents resorting to acquisition proceedings. By the conversion of private road into public road, the value of the Estate will be diminished and that safety and privacy of the residents of the Estate will be at stake. 17.It was further stated that while in the communication sent by the Principal Commissioner-cum-Commissioner for Land Administration, dated 6.10.2008 as evidenced from the letter written by the Tahsildar, Kothagiri, the land that was sought to be acquired was only 0.87.5 hectares, whereas in the present notification, there was greater demand of 1.31.34 hectares. This will clearly show the non application of mind. It is also stated that in the Nilgiris District, there are several hundred Estate which are having restrictions of usage of their road running through their Estates. But acquisition of private road of the petitioner Estate open to public was only pick and choose method. By converting the private road into public road, several illegal activities including drug trafficking become possible and that some miscreants were cultivating Kanja in the nearby Estate. A clear alternative pathway has been provided to the residents of the two hamlets. It was nothing but a mala fide intention in having resorting to the land acquisition proceedings without any justification. 18.In response to these allegations, in the counter affidavit filed along with vacate stay application, the respondents contended that this court in the criminal revision case had referred to the public demand for public road. Therefore, the resolution of the Panchayat council of Kothagiri, dated 10.7.2008 had requested the State Government to acquire the land by invoking urgency clause. The said resolution was forwarded by the District Administration on 30.7.2010 to the Commissioner of Land Administration for appropriate orders. It was thereafter the https://hcservices.ecourts.gov.in/hcservices/ Commissioner of Land Administration on 6.8.2010 had requested the State Government to invoke the urgency clause. After considering the proposal by the District Collector as well as materials and considering the request of the general public, the Government had decided to invoke the urgency clause as the management of the Estate had imposed unreasonable restrictions to the general public at Anna Nagar and Kamarajar Nagar by imposing Gate passes and collecting huge toll fees from the poor agriculturists. During night hours, no one was allowed to use the road and that the residents of the two hamlets were facing great hardships especially the school going children, patients and pregnant women are suffering a lot due to restrictions imposed by the management. The management did not permit the usage of disputed road between 6.00 p.m. and 6.00 a.m. of the next day. The were also restricting the movement of tea leaves which will have to be transported within a reasonable time. The vehicles are not allowed to pass through the road. The school going children are made to walk 2-1/2 Kms to the school to take the school bus or the bus to reach the school. Therefore, considering the grave urgency, the Government had decided to invoke the urgency clause to acquire the land. 19.Before invoking the land acquisition proceedings, the District administration claimed that they had inspected the said land and after completing all formalities, the expenditure was also estimated by the Joint Commissioner of Land Reforms. When the Tahsildar, Kothagiri sent an information by letter dated 10.1.2009 for permitting them to do