IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 21.04.2011 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NOS.9784 AND 9785 OF 2002 AND CONNECTED MISCELLANEOUS PETITIONS Dr.Mrs.Chellarani David M/s.Grace Hospital No.5/136, M.T.H.Road Nemilicheri Tirunindravur – 602 024. .. Petitioner (in both W.Ps.) Versus 1.State of Tamil Nadu Rep.by Secretary to Government Housing and Urban Development Department, Fort St.George Chennai – 600 009. 2.Chennai Metropolitan Development Authority Rep.by its Member Secretary No.8, Gandhi Irwin Road Egmore, Chennai – 600 008. 3.The District Collector Thiruvallur District. 4.District Revenue Officer (L.A.) CMDA, Egmore Chennai – 600 008. 5.Special Tahsildar (L.A.) ORR Unit – IV CMDA, Egmore Chennai – 600 008. .. Respondents (in both W.Ps.) PRAYER IN W.P. NO.9784 OF 2002: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the 1st respondent in Section 6 Declaration of the Land Acquisition Act in G.O.Ms.No.15 Housing and Urban Development {UD 3(2)} dated 17th January 2001 published in Tamil Nadu Government Gazette (Extraordinary) Part II Sec.2 dated 17th January https://hcservices.ecourts.gov.in/hcservices/ 2001 quash the same, and consequently forbear the respondents from acquiring the land and buildings of the petitioner, where M/s.Grace Hospital is situate in S.No.167/2A Part Nemilicheri Village, Thiruvallur District. PRAYER IN W.P. NO.9785 OF 2002: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the 5th respondent comprised in Award Enquiry in Na.Ka.15/2001/A/Alagu-4 dated 30.11.2001 quash the same, and consequently forbear the respondents from acquiring the land and building of the petitioner where M/s.Grace Hospital is situate in S.No.167/2A Part Nemilicheri Village, Thiruvallur District. For Petitioner : Shri.C.Franco Louis (in both W.Ps.) For Respondents-1, 3 to 5 : Shri.S.Ramasamy, AAGI (in all W.Ps.) for Shri.M.Dhandapani Special Government Pleader For Respondent-2 : No Appearance C O M M O N O R D E R These two Writ Petitions have been filed by the petitioner, challenging the declaration issued by the first respondent in G.O.Ms.No.15, Housing and Urban Development Department dated 17.01.2001 and the consequential award enquiry notice dated 30.11.2001 for the lands situated in Survey No.167/2A part, Nemilicheri Village, Thiruvallur District which have been acquired for the purpose of formulation of the Outer Ring Road. Facts in brief: 2.The second respondent, 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 the consequent increase in economic activities. 3.Therefore, it was proposed by the second respondent, Chennai Metropolitan Development Authority to have a Mass Rapid Transit https://hcservices.ecourts.gov.in/hcservices/ 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 carriage way 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. Accordingly, the proposal of the second respondent, Chennai Metropolitan Development Authority has been approved by the first respondent in G.O.Ms.No.381, Housing and Urban Development Department, dated 25.05.1993 and approving the proposal for the formation of Outer Ring Road, a notification was issued under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'). 4.In pursuant to the said approval granted by the first respondent, a notification was issued in G.O.Ms.No.523, Housing and Urban Development Department, dated 08.12.1999 proposing to acquire lands. In pursuant to the said notification, a publication was effected in the Government Gazette on 05.01.2000. It was published in the local dailies having wide circulation on 22.01.2000 and locality publication was made on 25.01.2000. The 5(A) enquiry was conducted on 10.03.2000, 13.03.2000 and 14.03.2000. After considering the objections, an order was passed by the fifth respondent on 21.06.2000. A declaration was passed by the first respondent in G.O.Ms.No.15, Housing and Urban Development Department dated 17.01.2001. 5.Notices under Section 9(3) and 10 of the Act were sent on 30.11.2001. In pursuant to the said notice, award enquiries were conducted under Section 11 of the Act on 26.12.2001, 27.12.2001 and 28.12.2001. Thereafter, an award was passed in Award No.1 of 2002 dated 31.01.2002. The notice under Section 12(2) of the Act was issued on 09.04.2002. The Writ Petitions have been filed by the petitioner challenging the declaration under Section 6 of the Act as well as the award enquiry notice on 18.03.2002. 6.The petitioner herein is a qualified Medical Practitioner. She has put up construction in Survey No.167/2A by establishing a Hospital in the name of M/s.Grace Hospital. The petitioner has also put up a Pharmacy and residential house in the said place. The Hospital has been functioning from the year 1985 onwards. It is situated at the junction/intersection of the Chennai – Thiruvallur High Road and the Outer Ring Road. The Hospital is having a Trauma care performing numerous Orthopeadic surgeries. Apart from that, it has also an automatic anesthetic ventilator. It has got facilities like emergency care services. It is a 21 bedded Hospital, which is stated to perform 1000 deliveries every year. Apart from the same, it has an approved Family Welfare Centre of the State of Tamil Nadu, a recognized Unit for integrated disease Surveillance, an approved Unit by the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ State Aids Control Society and an empanelled Service Provider Network Hospital (Insurance). It is also stated to have the support of the Specialist in the field of Cardiology, General Surgery, Plastic Surgery, Oncology Surgery, Orthopaedic, Obstetrics & Gynaecology. According to the petitioner, there is no other Hospital nearby within a radius of 10 kilometres with the above said facilities and the Government District Hospital is at 17kms away. 7.An extent of 0.10.0 hectares of land in Survey No.167/2A2 corresponding to 1435.1 square metres of the land, in which the petitioner's Hospital, Pharmacy and residential house are situated, have been sought to be acquired by the respondents by issuance of the notification under Section 4(1) of the Act. The petitioner appeared for the 5-A enquiry. 8.The petitioner was called for further enquiry by the notice dated 08.05.2000. The petitioner gave objections by the letter dated 27.05.2000 stating that her objections have not been considered. She has also enclosed her earlier objections vide her letter dated 03.03.2000. The petitioner's objections have been rejected on 21.06.2000. She gave further objections stating that her earlier objections have not been considered and the objections said to have been made have not been raised by her. 9.However, a declaration was passed in G.O.Ms.No.15, Housing and Urban Development Department, dated 17.01.2001. Thereafter, in pursuant to the notice issued under Section 9(3) and 10 of the Act, an award was passed in Award No.1 of 2002. Thereafter, the petitioner has filed the present Writ Petitions, one challenging the declaration issued under Section 6 of the Act and the other challenging the award enquiry notice. Submissions of the petitioner: 10.Shri.C.Franco Louis, learned counsel appearing for the petitioner filed voluminous documents to show that the petitioner's Hospital has been catering to the needs of the local public. It was placed on record along with the communication of the second respondent that there is no other Hospital in the nearby area. Therefore, it is submitted that when there is a public purpose, it cannot be substituted by another one, by acquiring the lands. The order passed by the respondents in exercise of the power under Section 3(f) of the Act has to be set aside, since the procedures contemplated therein and the principles enunciated by the Honourable Apex Court, have not been followed. The first respondent has not considered the materials available on record before granting the prior approval. The enquiry conducted under Section 5-A of the Act has been conducted in a perfunctory manner, without even understanding the objections of the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 11.Considering the valuable rights involved, a duty is enjoined upon the 5th respondent to consider the objections objectively by applying his mind instead of rejecting the same on irrelevant grounds. At the time of acquisition, places have been earmarked on both sides of the proposed road for commercial purposes. The plan originally proposed, has been changed subsequently and as a result, the property of the petitioner has been cut into two. Accordingly, the Hospital, Pharmacy and the residential house can never be saved by considering any exemption and the remaining property will be of no use without any access. The second respondent has placed on record earlier that the petitioner's request can be considered at a later point of time for exempting her property. It is not clear as to whether the original plan has been changed. The subsequent communication sent by the Chief Planning Officer supports the case of the petitioner. 12.A perusal of the Revised Feasibility Report clearly indicates that Option No.1 is better one than Option No.2. If the respondents are proceeding with Option No.1, then the petitioner's land can be exempted, as it comes within the commercial place earmarked. On the other hand, if the Option No.2 is adopted, then in the event of this Court not willing to quash the proceedings, considering the public interest involved, an alternative place can be earmarked for the petitioner. The Court is not powerless in directing the respondents to give an alternative site and in appropriate cases, the Courts can exercise their discretion by issuing suitable directions. The petitioner cannot be non-suited merely on the ground of award having been passed, since the Writ Petitions have been filed on 18.03.2002 and the 12(2) notices have been received on 09.04.2002. The petitioner has been agitating her rights with the second respondent right from the initiation of the 5-A proceedings to till date. 13.In support of the said contentions, the learned counsel has made reliance upon the following judgments: "MUNSHI SINGH AND OTHERS vs. UNION OF INDIA [(1973) 2 SCC 337] MANDIR SITA RAMJI vs. GOVERNOR OF DELHI [AIR 1974 SC 1868] SHYAM NANDAN PRASAD vs. STATE OF BIHAR [(1993) 4 SCC 255] TAMIL NADU REAL ESTATES LTD. & OTHERS vs. THE SPECIAL TAHSILDAR, LAND ACQUISITION, ETC. & OTHERS [2002-1-L.W.37 S.N.] UNION OF INDIA vs. MUKESH HANS [AIR 2004 SC 4307] HINDUSTAN PETROLEUM CORPN. LTD. vs. DARIUS SHAPUR CHENAI AND OTHERS [2005 (5) CTC 789] VIJAYA vs. STATE OF TAMIL NADU [2009 (3) CTC 545] COMMISSIONER OF POLICE vs. GORDHANDAS BHANJI [AIR 1952 SC 16(1)] MOHINDER SINGH vs. CHIEF ELECTION COMMISSIONER [AIR 1978 SC 851] BHIKHUBHAI VITHLABHAI PATEL vs. STATE OF GUJARAT [AIR 2008 SC 1771] HARISH CHANDRA vs. DY.L.A.OFFICER [AIR 1961 SC 1500] https://hcservices.ecourts.gov.in/hcservices/ T.RAMARAJ vs. STATE OF TAMIL NADU [AIR 1994 MADRAS 313] THIRUVENGADAM, R. vs. SECRETARY TO GOVERNMENT, HOUSING DEPARTMENT, GOVERNMENT OF TAMIL NADU, MADRAS – 9 [1997 (II) CTC 323] JAGDISH CHAND AND ANOTHER vs. STATE OF HARYANA AND ANOTHER [(2005) 10 SCC 162] P.VIJAYARAGHAVAN vs. THE GOVERNMENT OF TAMIL NADU [W.P.NO.10918 OF 2008 ETC. BATCH DATED 28.01.2010] HANSRAJ H.JAIN vs. STATE OF MAHARASHTRA AND OTHERS [(1993) 3 SCC 634] PT.PARMANAND KATARA vs. UNION OF INDIA AND OTHERS [AIR 1989 SC 2039] PASCHIM BANGA KHET MAZDOOR SAMITY vs. STATE OF W.B. [(1996) 4 SCC 37] COLLECTOR, 24 PARGANAS vs. LALIT MOHAN MULLICK [AIR 1986 SC 622]" Accordingly, the learned counsel submitted that the Writ Petitions will have to be allowed. Submissions of the respondents: 14.Per contra, the learned Additional Advocate General submitted that the Courts will have to see the overwhelming public interest involved, as against limited public interest. The petitioner has not challenged the award and has approached this Court after the passing of the award. Hence, it is not open to her to challenge the proceedings till the passing of the declaration under Section 6 of the Act. Except the petitioner and three other persons, who have filed Writ Petitions, which are heard along with the present Writ Petitions, possession has been taken from all other persons concerned, considering the fact that the process of implementing the scheme has already commenced and taking note of the emergent situation the Writ Petitions will have to be dismissed as this Court shall not exercise the discretion available under Section 226 of the Constitution of India to the case of the petitioner. Therefore, the learned Additional Advocate General submitted that the Writ Petitions will have to be dismissed. Discussions: 15.During the 5-A enquiry proceedings, the petitioner gave specific objections. The objections are extracted hereunder: "(a) EXEMPTION of my property namely S.No.167/2A (Part) at Nemilicheri Village, does not hinder or affect the formation of Road in the ORR Project i.e. 60' +60' (b) EXEMPTION of my property does not hinder or affect the future formation of mass rapid rail system in the ORR Project i.e. 100' (c) My property lies in a portion of the western side end of the https://hcservices.ecourts.gov.in/hcservices/ LAND RESERVED FOR COMMERCIAL EXPLOITATION AND PUBLIC PURPOSE in the ORR Project." 16.Therefore, a request has been made considering the fact that the earmarked alignment for the railways is not affected and the place earmarked for the roads on either side of the area is also not affected, coupled with the public interest involved, the lands of the petitioner need not be acquired. However, the respondents 2 and 5 have totally misconstrued the objections of the petitioner. The objections that have been taken into consideration and the remarks given by the second respondent, are as follows: No. Objections View of 2nd respondent 1 Objection seeking enhanced compensation As per the Land Acquisition Act, and as fixed by the Land Acquisition Officer, and as approved by Commissioner, Compensation will be paid. 2 To provide alternate land or house site in lieu of acquisition Since the acquisition is for formation of Road, it is not possible to consider request for alternate land or for residential plot. 3 Outer Ring Road to be formed abutting poramboke land Outer Ring Road plan is one already sanctioned by the Government. 100 path has been ear marked for Railways. Now to change the alignment will lead to new problems. Therefore it is not fit to consider a different alignment. 17.The petitioner gave her objections on 27.05.2000 reiterating the fact that her earlier objections have not been considered at all and wrong objections have been noted. Unfortunately, the 5th respondent once again made a mistake in a cryptic manner and by a total non application of mind, has rejected the objections of the petitioner. The petitioner gave further objections on 18.09.2000, ofcourse after the orders have been passed in the 5-A enquiry. Thereafter, the declaration has been passed in G.O.Ms.No.15, Housing and Urban Development Department, dated 17.01.2001. The petitioner approached the first respondent by writing a letter dated 01.01.2002 seeking exemption. She also sought for a sketch made by the survey team under Section 6 of the Right to Information Act 2000. The communication dated 09.02.2002 of the Chief Planner is extracted hereunder: "CP(ARD)/Member M.S. V.C. "The request of the petitioner may please be perused. It states https://hcservices.ecourts.gov.in/hcservices/ that the Hospital is located within the space allocated for commercial exploitation and hence may be considered for exemption from acquisition. A perusal of the sketch showing the location of the hospital, the alignment and the space for commercial space indicates, indeed a significant portion falls within the commercial exploitation space. This appears to be a hospital of fairly long standing from 1985 and caters to the surrounding areas. It may be possible for the hospital to be exempted since the alignment is not affected in anyway and in any case after acquisition we would be giving it for commercial development. Comparing that to a social cause like this hospital may be a more desirable development. For consideration. Pl.discuss Sd.Chief Planner Sd.Member Secretary 4/2 09.02.02 Discussed with MS." 18.The reply communications dated 22.02.2002 and 26.02.2002 are also extracted hereunder: "As there is policy decision to stick with its alignment in its totality, it is not possible to agree to the request at the moment. Later the applicant may ask for alienation of the land with the structure". Sd.Chief Planner Sd.Member Secretary 20/2 22.02.02 AP/PA To see the note above approved by MS. Accordingly, put up draft letter to the applicant Sd. 26/2" 19.The petitioner received a letter dated 28.02.2002 from the second respondent, which is extracted hereunder: "Petitioner thereafter received letter dated 28.2.2002 from the 2nd respondent which is extracted below: https://hcservices.ecourts.gov.in/hcservices/ BY RPAD From: To: The Member – Secretary, Dr.(Mrs.)Chellarani David, Chennai Metropolitan Grace Hospital Development Authority, Nemilichery 1, Gandhi Irwin Road, Thiruvallur Dist. - 602 024. Egmore, Chennai – 600 008. ------------------------------------------------------------------ ------- Lr.No.RC 15 / 2001 Unit IV Dt.28.2.2002 Sir, Sub: CMDA – Traffic Division – ORR Project – LA – Exemption requested – Reply sent. Ref: Your Lr.Dated Nil * * * With reference to your letter cited, I am to inform that a policy decision has been taken by the Govt,. to stick with the alignment of ORR in its totality. Therefore, the request of applicant to exempt the property/land in S.No.167/2A part of Nemilichery Village in the ORR alignment may not be considered. Later, the applicant may apply for alienation of the said land with structures. Yours faithfully Sd/- (for Member Secretary)" 20.The above said letters and communications would indicate that originally what was proposed is to use a portion of the petitioner's land for the road. That is the reason why the petitioner gave her objections seeking exemption. Thereafter, the petitioner has obtained information from the website of the second respondent on 01.09.2008. The said information also shows that the plots have been earmarked for commercial exploitation on both extreme ends of the Outer Ring Road. In this regard, the petitioner sent a letter dated 19.08.2009 under the Right to Information Act. The second respondent by letter dated 14.09.2009 replied to the petitioner which is extracted hereunder: "With reference to your letter cited above, the following is furnished under the RTI Act 2005: https://hcservices.ecourts.gov.in/hcservices/ Para No. Information sought by the Petitioner Reply 1 You are requested to let me know whether there is any case, where there exists any institution serving public cause like a private HOSPITAL, within the space provided for commercial exploitation, other than Grace Hospital situate at Nemilicheri The land under acquisition in S.No.167.2A part wherein a medical shop, a private Hospital and a house reported to be existing is required for formation of road lanes and foot path forming part of the Outer Ring Road. Other than the Petitioner's private Hospital there is no case filed by any institution serving public cause is pending against the acquisition of land for ORR as per the records available in CMDA. 2 You are also requested to kindly let me know whether the area ear marked for commercial exploitation on the extreme sides of the outer ring road project, has been handed over to GMR infrastructure or to any other agency for development The ORR lands so far acquired is vested with the CMDA and it has not been handed over to any other agency as on date. 21.The petitioner sent another letter on 24.09.2009 which was replied by the second respondent on 19.10.2009 in the following manner: "With reference to your letter cited above, the following is furnished under the RTI Act 2005: https://hcservices.ecourts.gov.in/hcservices/ Para No. Information sought by the Petitioner Reply 1 Admittedly the Hospital serving public cause is on Chennai Thiruvallur High Road (NH 205) which is 100ft. Road. When there is already 100 ft. Highway abutting the Hospital in Survey No.167/2A part, you are requested to let us know, whether ignoring the 100 ft. Highway, which is more than a Road Lane will any planner representing CMDA form a Road Lane and or a Foot Path in the area allotted for Commercial Exploitation, with particular reference to S.No.167/2A part, where the Hospital Serving Public Cause stands. Your site is at the junction / intersection of the Chennai Thiruvallur High (CTH) Road and the Outer Ring Road (ORR). The CTH Road (NH 205) is running in the East to West direction abutting in the North the S.No.167 of Nemilicheri Village. The proposed ORR passes through the S.No.167/2A of Nemilicheri Village perpendicularly in the North-South direction, which will connect Vandalur in the South with Minjur in the North passing through the Nemilicheri Village in the West of the Chennai Metropolitan Area. The exact enclosed shows the configuration of the ORR. Further there will be a fly-over which will be designed during execution at this junction of CTH Road with ORR. 2 You are requested to provide me with the existing plan showing the Road Lanes and Foot Path on Outer Ring Road. The following can be obtained by the Petitioner by contacting the Public Relations Officer, CMDA: 1)The map of the Nemilicheri Village showing the alignment of the ORR. Cost Rs.300/- 2)Copy of FMB Sketch for S.No.167— Rs.2/- 22.The petitioner further applied for the Revised Feasibility Report which was duly furnished to her. Chapter 9.4(iv) of the Revised Feasibility Report which deals with Allocation for Commercial Development is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ "Clause 9.4(iv) of the REVISED FEASIBILITY REPORT which deals with Allocation for Commercial Development is extracted below: Allocation For Commercial Development: Linear development of commercial space on a narrow strip of land (27.45m) on either side for a 62.3km long corridor has never been adopted anywhere before and as such it may not be considered a sound commercial or urban development proposition. The ToR configuration renders the depth of land ear marked for commercial development, too small for attracting major establishments to set up their facilities, unless they also acquire adjacent lands beyond the RoW. In case the linear strip on both sides are posed for commercial development, the total saleable area will be about 180 hectares after allowing for lengths not available for sale in case of water bodies, intersections, interchanges, high embankments on approaches to bridges etc. While computing this, stretches contiguous to present settlements and developments in the catchment area have also been considered as permissible for development. At an average price of Rs.45 lakhs / hectare based on guideline values, the sale process will fetch about Rs.81 crores, that too in year 2010 or so. However, this has been discussed with CMDA at different point of time and the estimated revenue realizable is discussed here below under Option 2. Hence this approach of allocating a narrow strip of land on either side for mobilizing resources for funding the project needs to be jettisoned and alternate strategies developed, which are in line with recent trends in road and urban development. In sum, it can be surmised that ear marking of 30.5 m for the railway reserve and 27.45 m on either side for commercial development has severely constrained the flexibility of configuring the ORR roadway in line with its positioning as a major urban arterial. Quite clearly, the disadvantages of the ToR configuration far outweigh its advantages and hence the configuration proposed in the ToR needs to be substantially revised." 23.Similarly, paragraph 9.5 of the Revised Feasibility Report deals with the review of ORR configuration and paragraph 9.6 which deals with the configuration Options are produced hereunder: "Option 1: Provision of the transportation corridor in the centre of RoW with the centre-line of PTC in alignment with the centre- line of the RoW as shown in Figure 9.4. https://hcservices.ecourts.gov.in/hcservices/ As in the case of 27.45 m strip in the ToR configuration, the revised open space area of 25 m width on either side is also not amenable to commercial development. Hence this area could