(Prayer in W.P(MD)No.8929 of 2015: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records relating to the impugned order passed by the third respondent in his proceedings K.No.4518/2009/Vu.Po2, dated 14.05.2015 and quash the same as illegal and consequently, direct the respondents herein to take appropriate measures to draw a composite plan to construct road over bridge and service road abutting Ramamurthy Road, Virudhunagar Town, simultaneously to ensure free access of the petitioner to the public places.)
Common Order
1. Here, is an yet another round of litigation by the respective petitioners, regarding the issue of construction of a Road Over Bridge in lieu of Existing LC.No.403 at Railway Km. 538/500 - 600 between Virudhunagar and Thulukkapatti Railway Stations (Virudhunagar Town).
2. W.P(MD)No.8929 of 2015 has been filed seeking a Writ of Certiorarified Mandamus to call for the records relating to the impugned order passed by the third respondent in his proceedings K.No.4518/2009/Vu.Po2, dated 14.05.2015 and quash the same as illegal and consequently, direct the respondents herein to take appropriate measures to draw a composite plan to construct road over bridge and service road abutting Ramamurthy Road, Virudhunagar Town, simultaneously to ensure free access of the petitioner to the public places.
3. W.P(MD)No.8930 of 2015 has been filed seeking a Writ of Certiorarified Mandamus to call for the records relating to the impugned order passed by the third respondent in his proceedings K.No.4518/2009/Vu.Po2, dated 14.05.2015 and quash the same as illegal and consequently, direct the respondents herein to take appropriate measures to draw a composite plan to construct road over bridge and service road abutting Ramamurthy Road, Virudhunagar Town, simultaneously to ensure free access of the petitioner to the public places.
4. W.P(MD)No.8957 of 2015 has been filed seeking a Writ of Certiorarified Mandamus to call for the records relating to the impunged order of the third respondent in K.No.4518/2009/Vu.Po.2, dated 14.05.2015 and quash the same and consequently, direct the respondents herein to take adequate steps for laying and constructing a service road abutting Ramamurthy Road with a bridge providing adequate facilities for ingress and egress in every point of access to the public road.
5. W.P(MD)No.5207 of 2015 has been filed seeking a Writ of Certiorarified Mandamus to call for the records of the first respondent pertaining to the proceedings in G.O.(2D).No.184, Highways and Minor Ports (H.S.2) Department, dated 23.12.2014 and quash the same and consequently, direct the respondents to restore Ramamurthy Road to the control and ownership of Virudhunagar Municipality.
6. W.P(MD)No.5208 of 2015 has been filed seeking a Writ of Certiorarified Mandamus to call for the records of the first respondent pertaining to the proceedings in G.O.(2D).No.184, Highways and Minor Ports (H.S.2) Department, dated 23.12.2014 and quash the same and consequently, direct the respondents to restore Ramamurthy Road to the control and ownership of Virudhunagar Municipality.
7. W.P(MD)Nos.8250 to 8256 of 2015 have been filed seeking a Writ of Certiorarified Mandamus to call for the records relating to the impugned notification issued by the fourth respondent herein published in Dinamani Tamil Daily in ref.Se.Ma.Tho.E/309/Nilam/2014, dated 25.12.2014 and quash the same insofar as the petitioners herein are concerned and consequently, direct the respondents herein to issue appropriate notification under Section 8(1) of the Tamil Nadu Highways Act, 2001, complying with the directions contained in W.P(MD)No.2190 of 2012, batch, dated 25.09.2014 and statutory provisions contained under Section 8(1) of the Tamil Nadu Highways Act, 2001.
8. Contempt Petition (MD)No.547 of 2015 has been filed to punish the respondents herein for their wilful disobedience to the order of this Court dated 25.09.2014 made in W.P(MD)No.2129 of 2012.
9. Since the issue involved in these writ petitions, is one and the same, all the writ petitions are taken up together for hearing and decided by this common order.
FACTUAL MATRIX:
10. The facts of this case were already elaborately narrated and discussed by this Court in the previous battle of litigation in W.P(MD)No.2129 of 2012 and batch and by an order dated 25.09.2014, this Court disposed of the said writ petitions. The origin of the litigation, is extracted hereunder [para.17.1 and 17.2]:
"17.1. The core issue involved in this batch of writ petitions, is of the construction of a Road Over Bridge (hereinafter referred to as 'ROB') or Road Under Bridge (hereinafter referred to as RUB ) in lieu of Existing LC.No.403 at Railway Km. 538/500 - 600 between Virudhunagar and Thulukkapatti Railway Stations (Virudhunagar Town).
17.2. The proposed site for the construction of ROB in lieu of existing LC 403 at Railway KM 538/500-600 is located near Virudhunagar Railway Junction. The western side (Virudhunagar side) of the proposed ROB lies in Ramamoorthy Road which is being maintained by Virudhunagar Municipality. The eastern side (Aruppukkottai side of ROB also lies in Ramamoorthy Road, which is other district road (ODR) maintained by Virudhunagar Highways Construction and Maintenance Division."
11. On an overall conspectus of the issues that arise for consideration in the present batch of writ petitions along with a Contempt Petition, this Court finds it necessary to reproduce the relevant portions of the order passed by this Court in W.P(MD)No.2129 of 2012 and batch, dated 25.09.2014, hereunder [para.158]:
"158. CONCLUSION:
From the above discussions, it is clear that the state Act is repugnant to the provisions of the Central Act. The mandatory procedures contemplated under the State Act have also been not followed. The road must first be declared as a highway, then the markings have to be made and a notification has to be published as contemplated under section 8. Then upon receipt of the objections, the Highways authority has to conduct and enquiry and decide on the extent and alignment. Only thereafter a notification under section 15 (2) can be published calling for objections. Only after an order is passed under section 15 (3), the notification under section 15 (1) can be effected. It is pertinent to mention here when the provisions regarding the procedure were included, it is to ensure less cost and minimum acquisition. As already held, the delegation of power is valid. The District Revenue officer can proceed with the acquisition proceedings after the mandates are followed. It is open to the state government to decide on the construction of the ROB or RUB after the conclusion of the enquiry and based on the report of concerned technical experts. Accordingly, the impugned notification issued under Section 15(2) of the State Act, is set aside for the reasons stated above. The right to hold a property is a constitutional right. The right to acquire the lands for public purpose is an exemption to the constitutional right. The State indisputably has the right to acquire any land for public purpose. But, it must always ensure that only the required land is acquired. When the same is sought to be deprived, the State must act strictly in accordance with the provisions of the Act. The State must bear in mind that any deviation therefrom would vitiate the entire proceedings. The inordinate delay has occasioned due to the misfeasance of authorities of the state. This has not only resulted in delay in project but has also resulted in matter getting protracted till the advent of the new Act. As observed by the Apex Court and this Court in many cases, the state must not frivolously contest the cases against them. The state must in public interest, whenever it is alleged that either opportunity is not sufficient or the procedure is not followed, must without hesitation come forward to set at nought the illegality by initiating fresh proceedings. Had the state been more vigilant and anti-litigative, it could have effected the notifications afresh as contemplated under law and completed the project itself by now. In view of the above, the impugned notification is set aside. However, the State is at liberty to issue fresh notification after complying with the statutory provisions. It is also made clear that while fixing the compensation to be paid to the persons from whom the lands are acquired, the provisions of the Central Act, 2013 have to be followed. The State is directed to conduct a feasibility study by seeking expert opinion to strike a balance between cost, extent of lands required to be acquired after following the procedures as contemplated under Section 8 of the Tamil Nadu Highways Act, 2001, in regard to Road Over Bridge or Road Under Bridge within a period of six weeks and thereafter, issue a notification within two weeks from thereon calling for objections, conduct and conclude the proceedings as per law. The State shall also take steps to ensure that the work is commenced not later than three months from the date of receipt of the copy of this order."
12. A cursory view of the above would show that the impugned notification issued under Section 15(2) of the Act was set aside, giving liberty to the State to issue fresh notification after complying with the statutory provisions.
13. Now, the petitioners are before this Court challenging the impugned order(s)/Government Order(s)/Notification(s), on the ground that the authorities concerned have violated the directions issued by this Court in the order dated 25.09.2014 passed in W.P(MD)No.2129 of 2012 and batch.
14. For easy appreciation of factual scenario, it is just and proper to tabulate the impugned proceedings/Government Order(s)/Notification(s) hereunder:
| Sl.No. | Writ Petition | Impugned Order(s)/Notification and Date |
| 1. | W.P(MD)No.8929/15 | Proceedings in K.No.4518/2009/Vu.Po2, dated 14.05.2015. |
| 2. | W.P(MD)No.8930/15 | |
| 3. | W.P(MD)No.8957/15 | |
| 4. | W.P(MD)No.5207/15 | G.O.(2D).No.184, Highways and Minor Ports (H.S.2) Department, dated 23.12.2014. |
| 5. | W.P(MD)No.5208/15 | |
| 6. | W.P(MD)No.8250/15 | Notification issued by the fourth respondent herein publishedin Dinamani Tamil Daily in ref.Se.Ma.Tho.E/309/Nilam/2014, dated 25.12.2014. |
| 7. | W.P(MD)No.8251/15 | |
| 8. | W.P(MD)No.8252/15 | |
| 9. | W.P(MD)No.8253/15 | |
| 10. | W.P(MD)No.8254/15 | |
| 11. | W.P(MD)No.8255/15 | |
| 12. | W.P(MD)No.8256/15 | |
| 13. | Cont.P(MD)No.547/15 | To punish the respondents herein for their wilful disobedience to the order of this Court dated 25.09.2014 made in W.P(MD)No.2129 of 2012. |
W.P(MD)Nos.8929, 8930 and 8957 of 2015:
15.1. The petitioners herein contended that the Superintending Engineer, Highways Department, NABARD and Rural Roads, Tirunelveli - 2, the third respondent herein, has passed the impugned proceedings dated 14.05.2015, to the effect that service roads on either side of the proposed Road Over Bridge (hereinafter referred to 'ROB') would be constructed as per the order of this Court, in W.P(MD)Nos.4235, 2036, 4720 and 4707 of 2015, dated 31.03.2015.
15.2. The main grievance of the petitioners is that they would be prejudiced in the event of construction of ROB without any service roads on either side of the proposed ROB as there is no sufficient width available in the existing road and it would lead to irreparable hardship to the residents of that locality. The proposed ROB as well as the service roads on either side should be constructed simultaneously, by way of a composite plan, otherwise, the petitioners' ingress and egress to various places would be denied and hence, they have challenged the said proceedings dated 14.05.2015.
15.3. At this juncture, it is useful to extract hereunder the relevant portion of the order passed by this Court in W.P(MD)Nos.4235, 2036, 4720 and 4707 of 2015, dated 31.03.2015 [para 3 and 4]:
"3. The learned Additional Advocate General appearing for the State has filed an affidavit into court mainly contending that for the construction of the road over bridge, they do not want to acquire the properties of the petitioners alone. He also would contend that the width of the existing bridge itself is 10.5 x 20.3 meters and what they required for the proposed construction of the road over bridge is only 8.5 meters. Therefore, it is well within the extent of existing bridge itself. Therefore, they do not want any land of the petitioners for building road over bridge. In view of the same, the learned Additional Advocate General would specifically state before this Court that the lands of the petitioners will not be acquired for the purpose of putting up the road over bridge. In view of the very specific statement, nothing survives in all these writ petitions because if at all the petitioners want to agitate the matter, their lands should have been acquired and when their lands have not been acquired at all and not needed for the proposed construction of the road over bridge, all the points which have been raised before the Court need not be gone into. He would further state that if at all, after the completion of the construction of bridge is over if the petitioners want to have a service road or if the Government wants to have a service road, they will have to take appropriate action in accordance with the land acquisition proceedings for acquiring the lands of the petitioners. But at the same time, he would also state that insofar as those lands where the property owners are agreeable and acceptable, they will take the lands in accordance with law. Insofar as the petitioners lands are concerned, they will only come back in the event the Government is proposed to lay service road.
4. In view of the above statements made by the learned Additional Advocate General and the affidavit in paragraphs 6, 7, 8, 9 and 10, it is made very clear that the allegations made by the petitioners at this point of time does not need any consideration and it is left open. When their properties is not at all acquired, they will not be in any way hampered and in any way affected and they cannot have any say in the matter of construction of road over bridge. Therefore, the Government is at liberty to proceed with the road over bridge work in accordance with the rules and regulations and without acquiring the lands of the petitioners. To the above extent this order is passed."
15.4. The petitioners further contended that the respondents have proceeded to construct the ROB as per the above order of this Court, however, without any composite plan to construct any service roads thereon. What the petitioners apprehend, is that if the respondents are proceeding to construct the proposed ROB without providing the benefit of service roads, then, they cannot go for construction of service roads on either side separately, as the width of the road in question, is very limited and hence, the petitioners prayed for the construction of a ROB as well as service roads on either side, simultaneously, based on a composite plan, to ensure free flow of traffic in that road. Ultimately, they prayed for quashing the impugned proceedings dated 14.05.2015.
W.P(MD)Nos.5207 and 5208 of 2015:
15.5. The petitioner in W.P.(MD)No.5207 of 2015 is the elected Councillor of Virudhunagar Municipality representing Ward No.5, in which, the road in question, namely, Ramamoorthy Road is situated. Likewise, the petitioner in W.P.(MD)No.5208 of 2015 is an elected Municipal Councillor representing Ward No.28. They have challenged the G.O.(2D).No.184, Highways and Minor Ports (H.S.2) Department, dated 23.12.2014, in and by which, the road in question, has been upgraded as Other District Road and handed over the same to the Highways Department permanently, for the purpose of construction of ROB. The main contention of the petitioner is that since the road in question is owned by Virudhunagar Municipality, the same could not be transferred to the Highways Department, without consent or concurrence of Virudhunagar Municipality and in the case on hand, the impugned Government Order transferred the road in question in the name of Highways Department and hence, it is contrary to the provisions of Section 61(2) of the Tamil Nadu District Municipalities Act, 1920.
15.6. The main issue that arises for consideration in these writ petitions, is that the State Government, without following the relevant statutory provisions and contrary to the order passed by this Court in W.P(MD)No.2129 of 2012 and batch, dated 25.09.2014, the impugned Government Order has been issued and hence, there is a need for interference by this Court.
W.P(MD)Nos.8250 to 8256 of 2015:
15.7. The petitioners herein challenged the impugned notification issued by the fourth respondent published in Dinamani Tamil Daily in ref.Se.Ma.Tho.E/309/Nilam/2014, dated 25.12.2014, whereby, the lands of the petitioners are sought to be acquired for the purpose of construction of a ROB.
15.8. The primary contention of the petitioners is that the impugned notification dated 25.12.2014, is nothing but a verbatim reproduction of the earlier notification issued under Section 15(2) of the Tamil Nadu Highways Act, 2001, dated 30.12.2011, that has been quashed by this Court by order dated 25.09.2014, in W.P(MD)No.2129 of 2012 and batch. The respondents failed to comply with the provisions of the Act and the directions issued by this Court in the order dated 25.09.2014 and hence, it is illegal and arbitrary and hence, prayed for quashing the same.
Contempt Petition(MD)No.547 of 2015:
15.9. Alleging wilful disobedience on the part of the respondents, the petitioners have come forward with the present Contempt Petition, stating that the respondents failed to comply with the orders passed by this Court in W.P(MD)No.2129 of 2012, dated 25.09.2014 and prayed for initiating contempt proceedings against them in accordance with law.
CONTENTIONS:
W.P(MD)Nos.5207 and 5208 of 2015:
16. Mr.R.Viduthalai, learned Senior Counsel appearing for Mr.Veera Kathiravan, learned Counsel for the petitioners in W.P(MD)Nos.5207 and 5208 of 2015 made the following submissions:
16.1. First of all, the impugned Government Order is passed in violation of the order passed by this Court in W.P(MD)No.2129 of 2012, dated 25.09.2014.
16.2. The State Government neither examined the feasibility for constructing ROB or RUB nor followed the procedures established by law as per Section 3 of the Tamil Nadu Highways Act 2001.
16.3. In other words, they have deliberately violated the statutory provisions while issuing the impugned Government Order.
16.4. Further, the order passed by this Court in W.P(MD)No.2129 of 2012 and batch, dated 25.09.2014, having attained finality, Virudhunagar Municipality passed Resolution No.431 of 2014 on 18.11.2014. As a consequence, they have handed over Ramamurthy Road for the construction of a bridge and thereafter, the said road has to be handed over back to the Municipality.
16.5. In such circumstances, the State Government, by virtue of G.O.Ms.No.184 Highways Department, dated 23.12.2014, has completely given a go-by to the Resolution No.431 and has taken over the said road permanently. It exhibits a clear non-application of mind on the part of the Government. Thus, it is illegal as it is an executive over-reach of a judicial pronouncement.
16.6. To strengthen the same, he relied on a decision of the Honourable Supreme Court in Bihar State Government Secondary School Teachers Association v. Ashok Kumar Sinha reported in (2014) 7 Supreme Court Cases 416, wherein it is held as follows:
"24. At the outset, we may observe that we are conscious of the limits within which we can undertake the scrutiny of the steps taken by the respondents, in these Contempt proceedings. The Court is supposed to adopt cautionary approach which would mean that if there is a substantial compliance of the directions given in the judgment, this Court is not supposed to go into the nitty gritty of the various measures taken by the Respondents. It is also correct that only if there is wilful and contumacious disobedience of the orders, that the Court would take cognizance. Even when there are two equally consistent possibilities open to the Court, case of contempt is not made out. At the same time, it is permissible for the Court to examine as to whether the steps taken to purportedly comply with the directions of the judgment are in furtherance of its compliance or they tend to defeat the very purpose for which the directions were issued. We can certainly go into the issue as to whether the Government took certain steps in order to implement the directions of this Court and thereafter withdrew those measures and whether it amounts to non-implementation. Limited inquiry from the aforesaid perspective, into the provisions of 2014 Rules can also be undertaken to find out as to whether those provisions amount to nullifying the effect of the very merger of BSES with BES. As all these aspects have a direct co-relation with the issue as to whether the directions are implemented or not. We are, thus, of the opinion that this Court can indulge in this limited scrutiny as to whether provisions made in 2014 Rules frustrate the effect of the judgment and attempt is to achieve those results which were the arguments raised by the respondents at the time of hearing of C.As.Nos. 8226-8227 of 2012 but rejected by this Court. To put it otherwise, we can certainly examine as to whether 2014 Rules are made to implement the judgment or these Rules in effect nullify the result of merger of the two cadres."
Therefore, he contended that the impugned Government Order is liable to be interfered with by this Court.
16.7. The next limb of argument of the learned Senior Counsel appearing for the petitioners is that the impugned Government Order ultra vires the provisions of Section 61 of the Tamil Nadu District Municipalities Act, 1920 and Section 3 of Tamil Nadu Highways Act, 2001.
16.8. According to him, the State Government, in the absence of concurrence of the Municipality for taking over a road, cannot permanently take over the same as it is contrary to the provisions of Sections 61 and 61A in Chapter V of the Tamil Nadu District Municipalities Act, 1920.
16.9. The road in question, namely, Ramamoorthy Road, which is lying west to the Railway Level Crossing, is owned by Virudhunagar Municipality. It is also not specifically stated that the Municipality has only a "vested" interest in the above portion of the road and it was so "vested" with the Government.
16.10. Further, in the case of the second category of public streets which are vested with the Municipality, over which, the Municipality has title, Section 61(2) had to be read with Section 3 of the Tamil Nadu Highways Act, 2001, which is a legislation enacted after the 74th Amendment of the Constitution which came into force on 01.06.1993. Therefore, the State Government cannot take over a Public Street which is vested in title with the Municipality and that too, in the absence of concurrence of the Municipality.
16.11. Any other interpretation would defeat the purpose and object of the 74th Amendment of the Constitution of India. Unless the concurrence of the Municipality is read into Section 61(2) of the Act, the said sub-section becomes unconstitutional and invalid.
16.12. The Resolutions passed by Virudhunagar Municipality in the year 2011 as well as on 18.11.2014, have to be understood as supplemental to each other. The second Resolution does not supersede the first one. However, even if the second Resolution is to be read separately, no consent or concurrence of the Municipality had been given for the permanent taking over Ramamoorthy road. Therefore, the action of the State Government ultra vires the provisions of Section 61(2) of the Tamil Nadu District Municipalities Act, 1920 as well as Section 3 of the Tamil Nadu Highways Act, 2001. He, therefore, prayed for quashing the impugned Government Order.
16.13. In support of his above submissions, the learned Senior Counsel appearing for the petitioners in W.P(MD)Nos.5207 and 5208 of 2015, placed reliance on the following decisions:
(i) Raigarh Municipality v. Ramkaran reported in AIR 1958 Madhya Pradesh 355. Paragraphs 23 to 26 are extracted hereunder:
"23. In a recent decision of the Supreme Court in Fruit and Vegetable Merchants Union v. Delhi Improvement Trust, 1957 SCR 1: ((S)AIR 1957 SC 344) (O), their Lordships have considered the various meanings given to the word "vest" in several English cases. Their Lordships also came to the conclusion that the word "vest" is a word of variable import as is amply shown by provisions of Indian statutes also. Then their Lordships observed:
"It would thus appear that the word 'vest' has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation".
24. In several Indian cases it has been held that in spite of the vesting of public streets in the Municipal Committees the Government have some interest in the sub-soil of and in the column of air above the public streets : Gunendra Mohan Ghosh v. Corporation of Calcutta, ILR 44 Cal 689: (AIR 1917 Cal 95) (P); ILR 25 Mad 635 (supra) (N) and G. I. P. Railway Company v. The Municipal Corporation of the City of Bombay, ILR 38 Bom 565 at p. 573: (AIR 1914 Bom 104 at p. 106) (Q). The question was raised that as the Government have some interest in the public streets vested in the Municipalities, in civil suit about a street, the Government must be considered to be a necessary party.
In S. S. Sundaram Ayyar v. The Municipal Council of Madura and the Secretary of State for India in Council (N) (cit. supra), the learned Judges considered it desirable in second appeal when certain issues were sent down for findings that the Government might be added as a party. However, the question was not decided in that case, whether the Government can be considered to be a necessary party at all. In Krishnayya v. Bellary Municipal Council. ILR 15 Mad 292 (R) such a contention was clearly repelled; and in Bai Parwati v. The Nadiad Municipality, ILR 47 Bom 315: (AIR 1923 Bom 459) (S) it was laid down that the mere fact that Government would have some interest in all public streets vested in Municipalities was not any reason for holding that Government was a necessary party in a suit of this nature.
25. From the cases, referred to above, and all the discussion therein it will be clear that the word "vest" in Section 38 of the Central Provinces and Berar Municipalities Act, 1922, has only a limited effect. So far as public town-walls, gates, public streams, springs, public sewers, drains, public streets and roads etc., within the area of the Municipality, are concerned, the vesting section (Section 38) must, be so construed as to give to the Municipality the least interest in the property that is compatible with the proper exercise of the powers in relation to these things given to the Municipality under the Act.
26. There is no doubt that there will be some property acquired by the Municipality as owner thereof. It cannot be contended with any force that such property, on the supersession of the Municipality vests absolutely in the State. The words "shall, until the committee is reconstituted, vest in the State" are significant. The intention of the legislature is clear that the Municipal Committee will be reconstituted, but till its reconstitution, its property would vest in the State. That only means that there will he "vesting in equity" or "belonging in equity". Though it will pass an interest in the property, that interest will not be greater than is requisite to enable the State Government to control or maintain the functions of the Municipality."
(ii) Daya Wanti v. New Delhi Municipality reported in AIR 1982 DELHI 534. Paragraph 24 reads as under:
"24. This section gives a right to the committee to insist on obtaining the consent of the Government. If the land is vested in the Government and if the party applying for sanction of the plans has not obtained the consent of the Government, the committee can refuse to sanction the plans. Two arguments were raised before us. One was that in the case of the present lease the land did not vest in the Government and, therefore, consent of the Government was not necessary. We do not agree. Under the terms of the lease deed the land vests in the Lessor, i.e. the President of India. "Vesting" is a word which has many meanings .The word "vest" has several meanings with reference to the context in which it is used. Ordinarily vesting means 'the having obtained an absolute and indefeasible right as contradistinguished from the not having so obtained it (Richardson v. Robertson, 1862 (6) L.T 75(76) per Lord Cranworth). The word "vest" has no fixed connotation. It may vest in title, or it may vest in possession, or it may vest in a limited sense. ' It will depend on the context in which it is used in a particular piece of legislation. It appears to us that the word 'vest' as used in section 193(2) means vesting in the sense of title. It means that where the property is owned by the Government, Government consent must be obtained. Without the consent of the Government the plan may not be sanctioned. The section uses the expression Vest' in a sense synonymous with title. It is concerned with title. (Fruit and Vegetable Merchants' Union v. Delhi Improvement Trust, AIR 1975 SC 344)."
(iii) Municipal Corporation of Greater Bombay v. Hindustan Petroleum Corporation reported in (2001) 8 Supreme Court Cases 143. Paragraph 16 is reproduced thus:
"13. This Court in Fruit and Vegetable Merchants Union vs. Delhi Improvement Trust (supra), while interpreting Sections 45 to 49 and 54 and 54A of the Improvement Trust Act, held after referring the decision cited above as thus:
It would thus appear that the word vest has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation.
14. Section 16 of the Land Acquisition Act provides that when the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances. Here, the vesting in the context of the provision of the Act shows that the right, interests and title of the land holder is extinguished and the right, interests and title vest absolutely in the Government free from all encumbrances.
15. We are, therefore, of the view that the word vest means vesting in title, vesting in possession or vesting in a limited sense, as indicated in the context in which it is used in a particular provision of the Act."
(iv) M/s.Nova Ads. v. Metropolitan Transport Corporation and others in W.P(C)No.223 of 2009 decided on 12.12.2014. Paragraphs 37 to 50 are extracted hereunder:
"37. In B.K. Garad V. Nasik Merchants Co-op. Bank Ltd.[13], it has been ruled that if there is any conflict between a statute and the subordinate legislation, the statute shall prevail over the subordinate legislation and if the subordinate legislation is not in conformity with the statute, the same has to be ignored.
38. In Additional District Magistrate (Rev.), Delhi Administration V. Shri Ram it has been opined that it is a well recognized principle that conferment of rule making power by an Act does not enable the rule making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto.
39. Tested on the anvil of the aforesaid authorities, it can be said with certitude that an order of the present nature could not have been issued by the State Government, for it is not in conformity with the Act and, in fact, travels beyond the statutory provisions.
40. In view of our foregoing analysis, the opinion expressed by the High Court that the Corporation has the power or authority to deal with the streets, subject to restrictions under the Act and the MTCL has no power or authority to deal with the same on the basis of the government order, which has been referred to hereinabove, is absolutely justified in law.
41. Presently, we have to dwell upon the equitable facet. Before we delve into the arena whether the appellants deserve any equity or not, we may profitably refer to certain authorities where the equity cannot operate.
In Kedar Lai Seal and another V. Hari Lai Seal, while dealing with the concept of a solution on the basis of equities, Bose, J., speaking for the Bench stated thus:
"I am of the opinion that the second solution adumbrated earlier in this judgment, based on equities, must be ruled out at once. These matters have been dealt with by statute and we are now only concerned with statutory rights and cannot in the face of the statutory provisions have recourse to equitable principles however fair they may appear to be at first sight."
42. In Raja Ram Mahadev Paranjype and Others V. Aba Maruti Mali and Others, a three-Judge Bench has opined that "equity does not operate to annul a statute. This appears to us to be well established but we may refer to While and Tudor's Leading cases in Equity (9th ed. P.238), where it is stated:
"Although, in cases of contract between parties, equity will often relieve against penalties and forfeitures, where compensation can be granted, relief can never be given against the provisions of a statute."
43. In P.M. Latha and Anr. V. State of Kerala and Ors.[171, it has been opined:
"Equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law "
44. In Raghunath Raj Bareja and Anr. V. Punjab National Bank and Ors.[18L the Court observed that it is well settled that when there is a conflict between law and equity, it is the law which has to prevail. The Court further ruled that equity can supplement the law, but it cannot supplant or override it. In this context, reliance was also placed upon Madamanchi Ramappa v. Muthaluru Bojjappa, Laxminarayan R. Bhattad v. State of Maharashtra, Nasiruddin v. Sita Ram Agarwal, K Palanisamy v. Palanisamy, India House v. Kishan N. Lalwaru.
45. In the case at hand, as we have concluded that it is the Corporation who has the authority to deal with the bus shelters and not MTCL, the equity has to yield to law. It is submitted by the learned counsel for the appellants that they have spent huge amount in erecting the structures and also doing certain ancillary things in that regard and, therefore, appropriate extension should be granted. Such a prayer, needless to say, is in the realm of equity. It cannot be granted as that will violate the law. The contract between the MTCL and the appellants cannot bind the Corporation. Had there been an irregularity in the contract or any lapse, then the question of invoking the principle of equity could have arisen but as it is perceptible, it is an agreement between two parties in respect of an act, which one of the parties is not entitled to enter into as it has no legal authority.
46. That apart, while dealing with the issue of equity, we are obliged to deal with the conduct of the parties. The High Court had decided the writ petition in favour of the Corporation. The MTCL was very much aware that it has no authority to enter into any kind of contract for bus shelters as it was within the domain of the Corporation. This Court, at no point of time, had stayed the operation of the judgment passed by the High Court. The only order that was passed on 19.1.2007 was to the effect that until further orders, no action shall be taken in relation to bus shelters allotted to the petitioners subject to payment of all licence fee. Be it stated, an application was filed seeking clarification of the order dated 19.01.2007. On 10.3.2008, the Court passed the order that the applications for clarification and directions shall be considered along with the special leave petition. After the said order, the memo was filed, which has already been reproduced.
What is disturbing is that the MTCL entered into a compromise/ settlement with the appellants and on the basis of the compromise entered into an agreement. In the agreement, as we notice, there is a reference to this Court's order describing that in pursuance of the order passed by this Court, the agreement was entered into. This Court had never passed any order/direction in that regard. The Court had disposed of the matter on the basis of the compromise. There was no decision by this Court. In such a situation, when the parties entered into an agreement and knowing fully well that the decision of the High Court was still staring at them, which cannot be countenanced.
47. The claim of equity has also to be adjudged on the bedrock of truth. In Dalip Singh V. State of Uttar Pradesh and Others, the Court has observed thus:
"..... Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system.
The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final".
48. In Amar Singh V. Union of India and others, a two-Judge Bench has laid down:
"Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts. Courts held that such litigants have come with "unclean hands" and are not entitled to be heard on the merits of their case." In the said case, it is also stated that it is one of the fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings.
49. In the instant case, the appellants entered into a compromise/settlement with the MTCL. They were fully aware of the fact that as per the High Court judgment, MTCL did not have the authority. On the basis of the judgment of the High Court, such a settlement could not have been entered into. Despite the same, a settlement was entered and the cases were disposed of.
50. It is clear as a noon day that the MTCL, a wing of State Transport Department transgressed its powers, and we are inclined to think deliberately. In this context, a passage from Westminster Corporation V. London and North Western Railway, as has been reproduced in State of Bihar V. Kameshwar Singh, is apposite to quote:
"It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first."
(v) Vengaivasal Village Panchayat v. The State of Tamilnadu and 3 others reported in 2005-3-L.W.351. Paragraphs 18 to 29 are extracted as under:
"18. In the instant case, at no point of time, the Government had sought for the consent of the Village panchayat by appropriate resolutions for the proposal of reclassification of the impugned land from Vandi-patti Poromboke (cart-track) to Natham Poromboke. Obviously, there is a glaring violation not only to the principles of natural justice but also to the procedure contemplated for such reclassification.
19. Of course, an attempt was made on behalf of the Government to say that since the Government is empowered, by notification, to exclude from the operation of the Act any such public road, by exercising the power conferred under Section 125(2) of the Act, the Village Panchayat need not be given any notice for the said proposal and the consent of the Village Panchayat by way of appropriate resolutions is also not required, and what was required is only a consultation but not consent, as held by the learned Single Judge.
20. We are, however, unable to appreciate such proposition because the Tamil Nadu Panchayats Act, 1994 is intended to implement the principles relating to Panchayats in the Constitution to provide for among other things, Grama Sabha in a village or group of villages; constitution of Panchayats at village and other level or levels; direct elections to all seats in Panchayats at the village and intermediate level, if any, and to the offices of Chairperson of Panchayats at such levels; devolution by the State Legislature of powers and responsibilities upon the Panchayats with respect to the preparation of plans for economic development and social justice and for the implementation of development schemes; and also to give sufficient safeguards for protecting their vested rights conferred under the provisions of the Act within their respective jurisdictions.
21. In the post independent period, realising the fact that social, political and economic development of rural area depends on the successful and effective working of 'local self Government', Gandhiji had aptly remarked that 'True democracy can not be worked by twenty men sitting at the Centre. It has to be worked from below by the people of every village. Article 40 in Part IV of the Constitution of India directs that the States shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self Government.
22. The concept of Panchayat Raj system in our country, enshrined under Chapter IX of the Constitution of India relating to the Panchayats, vide Articles 243 and 243A to 2430 of the Constitution, is generally a three-tier arrangement, the first at village or group of villages (lower level), the second at block level (middle level) and third at the district level (upper level), intended to give a free hand to the respective panchayat in the matters of their internal administration which is well defined under the statutory provisions of the Act. Such power conferred by the statutory provisions in consonance with the spirit and object of the Constitutional provisions inserted by the Constitution (73rd Amendment Act), 1992, whereunder Part IX of the Constitution of India was inserted, in our considered opinion, cannot be lightly sidelined by the Government by passing the impugned G.O. resorting to the provisions of the Board Standing Order 21, or otherwise the consequence will be not only an infringement of the powers of the Village Panchayat conferred under the Act, but also a violation to Article 243G of the Constitution of India, whereunder respective panchayats are endowed with such powers and authority as may be necessary to enable them to function as institutions of self-government.
23. The power conferred on the Government under Section 125(2) of the Act is not absolute and independent but the same is subject to the power conferred under Section 125(1) of the Act protecting the vested right of the village panchayats, which is endowed with such powers and authority as may be necessary to enable them to function as institutions of self-government, as provided under Article 243G of the Constitution of India. If that be so, we are unable to agree with the view of the learned Single Judge that mere consultation of the panchayat is required and not their consent.
24. In the instant case, it is clear from the impugned G.O. that the Government ignoring the vested right of the appellant/village Panchayat conferred under Section 125(1) of the Act with respect to the " public road" in question passed impugned government order without even following the procedure contemplated under Section 125(2) of the Act for taking appropriate steps to exclude from the operation of the Act any such public road, and had chosen to reclassify the impugned Vandi-patti (Cart-track) poromboke as Natham poromboke and assign the same to the individuals, of course, resorting to Board Standing Order 21.
25. The question whether the Government is entitled to invoke the Board Standing Order ignoring the provisions of the Land Acquisition Act came for consideration before the Apex Court in Government of Andhra Pradesh and another v. Syed Akbar, 2004 (5) CTC 506, in a matter of assignment of land vested with the Government, which was acquired for public purpose, but was attempted to be used for other public purpose, viz., for grant of assignments, invoking the Andhra Pradesh Board Standing Order, 90(32), and the Apex Court held as follows:
"13. From the position of law made clear in the aforementioned decisions, it follows that (1) under Section 16 of the Land Acquisition Act, the land acquired vests in the Government absolutely free from all encumbrances; (2) the land acquired for a public purpose could be utilized for any other public purpose; and (3) the acquired land which is vested in the Government free from all encumbrances cannot be re-assigned or re- conveyed to the original owner merely on the basis of an executive order.
14. At the hearing, we specifically asked learned counsel for the respondent whether the Board's Standing Order 90(32) was issued under any particular statute, the learned counsel was not able to point out to any provision of law under which it was issued. He was not in a position to show that the said order bears any statutory force. Even otherwise, as per para 32 of the said order, the land acquired, no longer required for the public purpose for which it was acquired, could not be disposed of in favour of any person other than the citizen of India and that too without the sanction of the Government. If the land acquired for the public purpose is specifically relinquished, such land could be disposed of as stated in the said paragraph. If the land relinquished is likely to be again required for public purposes, it should be merely leased out for such term as may be considered desirable in each case. If the acquired land was an agricultural land at the time of acquisition, it should be disposed of inviting for sale in public auction by giving wide publicity in respect off sale. If at the time of sale, anybody puts forth his claim in respect of any field either as an adjacent owner or as an original owner, the sale of that field should be stopped and his claim investigated and disposed of in the manner specified in sub-clauses (i) and (iv) of Note (2) of the Board's order 90(32). If it is found that his claim is not proved, the field should be sold by public auction. In the case on hand, there is nothing on record to show that the part of the acquired land which remained unused was relinquished by the Government. A letter of Resident Engineer stated that the unused land was no more required cannot amount to relinquishment of the said land by the competent authority. In order to make a claim under para 32 of the said Board's Standing Order in the first place, it was necessary that the competent authority had subsequently relinquished the unused land. After such relinquishment of the land, the land had to be notified for sale in public auction. If at the time of sale of such land, the original owner made a claim, sale could be stopped and his claim could be investigated and thereafter the land was to be disposed of in the manner specified under the said paragraph. Added to this, by virtue of the amendment to para 32 brought about by G.O.Ms.No.783, dated 9.10.1998 , the land for the public purpose shall be utilized for the same purpose for which it was acquired as far as possible and in case the land is not used for the purpose for which it was acquired due to any reason, the land shall be utilized for any other public purpose as deemed fit. It appears this amendment was not brought to the notice of the High Court.
15. Chapter V of the Act deals with occupation of khalsa land and right of occupant. Under Section 54, procedure is prescribed for acquiring unoccupied land. This Section enables a person to submit a petition to Tehsildar if he is desirous of taking unoccupied land. On such application, the Tehsildar may in accordance with the rules made by the Government give permission on writing for occupation. Section 54-A indicates the procedure in respect of land acquired for the purpose of public benefit and which is no more required. It is clear from plain and clear language of the said Section that when an agricultural land acquired for public benefit is no longer required, the patta thereof shall be made in the name of the person or his successor from whom such land was acquired provided he consents to refund the compensation originally paid to him. This Section does not say that the agricultural land acquired for public benefit is no longer required for the purpose for which it is acquired. This Section can be attracted only in a case where agricultural land acquired for public benefit is no longer required not necessarily for the specific purpose for which it was acquired. Added to this, that the land is no more required is a decision required to be made by the competent authority. As in the present case, mere letter of Resident Engineer that the unused land is no more required is not enough. When the land is acquired under the Land Acquisition Act which is vested in the State Government free from all encumbrances, the question of reconveying the land as claimed by the respondent could not be accepted in view of the clear position of law stated in the decision of this Court aforementioned. Whether the unused remaining land out of the acquired land was sufficient or not for the purpose of construction of Mandal Revenue Office could not be decided by the High Court. It was for the competent authorities to decide about the same. The High Court, in our view, was not right in saying that the proposal to construct the Mandal Revenue Office in the unused land acquired was an after-thought. No material was placed on record to attribute any mala fides on the part of the authorities or to support the case that the proposal to build a Mandal Revenue Office was an after-thought."
(emphasis supplied)
26. In view of the ratio enunciated from the decision in Government of Andhra Pradesh and another v. Syed Akbar, 2004 (5) CTC 506, we do not find any difficulty to answer the legal issue raised in this appeal in negative to the effect that the Government shall not resort to exercise their powers under the Board Standing Orders which have no statutory force, ignoring the statutory provisions, viz., Section 125(2) of the Act, which could be exercised, in our considered opinion, by following appropriate procedure contemplated under law.
27. It is trite law that the courts jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of the provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words, vide Nasiruddin v. Sita Ram Agarwal (2003) 2 SCC 577.
28. The words employed in Section 125(2) of the Act viz., the Government is empowered to exclude from the operation of the Act any such public road by way of a notification, cannot be lightly disregarded.
29. In the instant case, we are satisfied that the impugned G.O. is obviously passed ignoring the provisions of Sections 125(1) read with Sections 2(28) and 125(2) of the Act, as no steps have been taken by the Government to issue any notification till date, in a manner contemplated under law, and therefore, the impugned order is liable to be set aside."
(vi) District Collector, Chittoor v. Chittoor District Groundnut Traders Association reported in AIR 1989 SUPREME COURT 989. Paragraph 7 reads as follows:
"The purpose and object for obtaining prior concurrence is to ensure availability of essential commodity throughout the country. The State Governments are not authorised to impose restrictions on the movement of the essential commodities as it would have reflections in other States both in regard to the price and in regard to the availability of the commodity for distribution. The Central Government has the responsibility of maintaining a balance between the interest of the various States and it has to ensure the availability of essential commodities for distribution at a fair price in other States also. All relevant aspects are necessary to be scrutinised by the Central Government in giving or refusing its concurrence not merely from the point of view of the State imposing restrictions but bearing in mind the conditions of trade and industry and the demand and supply of the concerned commodities in other States. Unless the Central Government is satisfied that it would be in the interest of all concerned, it may withhold concurrence for imposing restrictions on free movement of essential commodities. It is in this context that while delegating the powers to the State Government under S.3 for making orders in respect of matters specified in cl.(f) of S.3(2) by providing that such power shall not be exercised by the State Government without obtaining its prior concurrence."
Hence, he prayed that W.P(MD)Nos.5207 and 5208 of 2015 are to be allowed.
M.P(MD)Nos.3 and 3 of 2015 in W.P(MD)Nos.5207 and 5208 of 2015:
17. Mr.M.Ajmal Khan, learned Senior Counsel appearing for the impleading petitioner in M.P(MD)Nos.3 and 3 of 2015 summarised his contentions as under:
17.1. The impleading petitioner herein is a Member of the Legislative Assembly representing Virudhunagar Legislative Constituency and that he has filed these petitions only to safeguard the public interest.
17.2. The two councillors who objected to the passing of the Resolution No.431, have filed the present writ petitions, with an intention to stall the entire project in one way or the other.
17.3. The fifth respondent herein is the competent authority under Section 5(2) of the Tamil Nadu Highways Act, 2001 and therefore, he rightly issued the notification under Section 8(1) of the Act.
17.4. He also pointed out various aspects in favour of the construction of ROB in the road in question.
17.5. Because of the petitioners indulging in litigations, the entire public at large are put to suffer and the valuable project is being delayed for no good reasons.
17.6. Therefore, he prayed for the dismissal of the above writ petitions.
M.P(MD)Nos.4 and 4 of 2015 in W.P(MD)Nos.5207 and 5208 of 2015:
18. Whereas Mr.T.Antony Arul Raj, learned Counsel for the impleading petitioner in M.P(MD)Nos.4 and 4 of 2015 submitted that the petitioner herein is a resident of Rosalpatti village. Though the proposed project has been approved by the State Government, till date the same is yet to be implemented, because of the petitioners herein. He also pointed out the importance of the construction of ROB therein and it is only for the benefit and welfare of the residents therein. The challenge made in these writ petitions to the impugned Government Order has already been attained finality in W.P(MD)No.4270 of 2015 and this Court, by order dated 31.03.2015, disposed of the said writ petition and hence, the petitioners are trying to reagitate the same issue once again and it is not tenable in law and hence, prayed for the dismissal of these writ petitions.
W.P(MD)Nos.8250 to 8256 of 2015:
19. Mr.Veera Kathiravan, learned Counsel for the petitioners in W.P(MD)Nos.8250 to 8256 of 2015, inter alia, contended thus:
19.1. This Court directed the respondent authorities to comply with the procedures as contemplated under Sections 3 and 8 of the Tamil Nadu Highways Act, 2001, but, without adhering to the same, the respondents issued the impugned notification calling for objections under Section 8(1) of the Tamil Nadu Highways Act. To say, the impugned notification did not contain necessary particulars as per the procedures enunciated in the relevant provisions of law.
19.2. According to him, the authorities failed to follow the procedures as enunciated in the relevant provisions before issuing the impugned notification and it calls for interference on that ground alone.
19.3. Insofar as the defects in the notice with regard to the particulars of the land is concerned, it is contended that the impugned notification did not contain necessary particulars as stated in Section 8(1) of the Tamil Nadu Highways Act viz., highway boundary, building line and control line.
19.4. Before publication of the notification, the highway boundary, building line and control line should be fixed by the authority. The same should be reflected in the draft notification, viz., where the highway boundary is located, where the building line is located and where the control line is located. Thereafter only, the petitioners could make effective representation during the enquiry.
19.5. When the notification did not contain such particulars, the very purport of the provisions of the Act would be given a complete go-by. In similar circumstances, the Honourable Supreme Court quashed the draft notification in Competent Authority v. Barangore Jute Factory reported in (2005) 13 Supreme Court Cases 477. In paragraph 5, it is held as follows:
"5. ... Even though plot numbers of lands in respect of each mouza are given in the impugned notification, different pieces of land are acquired either as whole or in part. Wherever the acquisition is of a portion of a bigger piece of land, there is no description as to which portion was being acquired. Unless it is known as to which portion was to be acquired, the petitioners were unable to understand the impact of acquisition or to raise any objection about user of the acquired land for the purposes specified under the Act or to make a claim for compensation. It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning. Therefore, it is held that the impugned notification fails to meet the statutory mandate. It is vague and is not in accordance with law."
19.6. As there is a lacuna on the part of the respondents in complying with the procedures as per Section 8 of the Tamil Nadu Highways Act, the petitioners are unable to make an effective representation in accordance with law.
19.7. Moreover, the authority who issued the impugned notification, namely, the Divisional Engineer, NABARD Scheme, Paramakudi, is not a competent authority. Hence, a writ petition in W.P.(MD) No.2036 of 2015 was filed. Ultimately, the State Government decided to construct a Bridge within the available land of the Government and stated that they did not require the land of the petitioner. The said statement was recorded and further observed that the Government was at liberty to proceed with the ROB in accordance with the rules and regulations and without acquiring the lands of the petitioner. Consequent thereto, the respondents invited the tender dated 07.04.2015. Now, the same is under challenge.
19.8. When the law requires certain things to be done by certain persons, it has to be done only by those persons and not by any other deemed person. On this ground also, the impugned notification is liable to be set aside.
19.9. On a query under the Right to Information Act, the respondents categorically stated that the Divisional Engineer, Virudhunagar alone is the Highway Authority of Virudhunagar Division under Section 5 of the Tamil Nadu Highways Act. If that be so, the impugned notification was issued by an incompetent authority and thus, it needs interference by this Court.
19.10. Here, the respondent authorities had issued a draft notification under Section 8(2) of the Act, but they have not followed Section 8(3) of the Act, in publishing the final notification. However, even before the same, they called for the impugned tender for construction of a Road Over Bridge.
19.11. Since the tender has been floated by the respondent authorities, without following Section 8(3) of the Act, the petitioners are before this Court. Also, the orders passed by this Court in W.P(MD)No.4235 of 2015 did not enable the respondents to construct a Road Over Bridge without following Section 8(3) of the Tamil Nadu Highways Act.
19.12. Therefore, the fixation of Highway Boundary, building line and control line as per Section 8 of the Tamil Nadu Highways Act, has nothing to do with the acquisition process, but it is the duty cast upon the Highways Authority as per Section 8 of the Act to fix the boundaries when a project is proposed to be undertaken.
19.13. The notification under Section 8 of the Tamil Nadu Highways Act plays a vital role in the operation of Tamil Nadu Highways Act viz., acquisition of land, prevention of construction, removal of encroachment.
19.14. Hence the stand of the Government that when the land is not acquired by the authorities, it is not mandatory on the part of the authorities to complete the process under Sec.8 of the Tamil Nadu Highways Act, is misconstrued one.
19.15. The necessity for conducting enquiry under Section 8(1) of the Tamil Nadu Highways Act is to make representation to the Government that the proposed building line, control line and highways boundary need not be fixed within the petitioners' land.
19.16. The land of the petitioners are situated on the northern side of Ramamoorthy Road (Aruppukkottai side). The buildings are formed such as houses, hospitals, rented buildings etc., The map supplied by the respondent would clearly disclose that the above highway boundary, building line and control line are fixed within the lands of the petitioners, viz., on the southern side of the building.
19.17. According to the respondents, the available breadth of the road in question is 18.5 meters. The proposed bridge is to be constructed with a width of 8.5 meters. The service road will be provided at a width of 3 meters on either side. Hence the total width required for the project is only 14.5 meters. However, the available land of the Government is having a width of 18.5 meter. So there is excess vacant site of 4 meters and there is no necessity for fixing the above boundaries in the land of the petitioners. A different alignment other than the alignment fixed by the Highways Authority could be fixed. The respondents did not conduct an enquiry and they concluded the enquiry process without giving an opportunity to the petitioners.
19.18. As per Section 61 of Tamil Nadu Highways Act, the enquiry has to be conducted. Whereas the minutes of the respondent had not disclosed either recording of statement or receiving of written explanation from the parties. The enquiry under Section 8(1) of the Tamil Nadu Highways Act is absolutely necessary.
19.19. The impugned draft notification issued by the respondents under Section 8(1) of the Tamil Nadu Highways Act is nothing but verbatim reproduction of Section 15(2) notification under the Tamil Nadu Highways Act, which has been already set aside by this Court in the earlier round of litigation.
19.20. The Highways Authority without doing the exercise of fixing the above boundary had chosen to adopt Section 15(2) notification as far as the description of the land is concerned. Hence it is crystal clear that the respondents had exercised their powers arbitrarily and capriciously and hence, prayed for quashing the same.
19.21. Insofar as public convenience is concerned, it is argued that the Highway Authorities decided to construct a ROB without providing the service roads and thereby denied the access of right of public highway.
19.22. When the width of the Government land available in the road in question is 18 meters, no question of fixing the highway boundary within the lands of the petitioners would arise.
19.23. Ultimately, he concluded that the convenience of the public at large who will utilise the bridge as well as the service roads must be taken into consideration by the authorities concerned before they initiated to proceed further in the matter and any violation in adhering to the provisions of law cannot simply be accepted and therefore, prayed for allowing the above writ petitions.
M.P(MD)No.3 of 2015 in W.P(MD)No.8254 of 2015:
20. Mr.T.Lajapathi Roy, learned Counsel for the impleading petitioner in M.P(MD)No.3 of 2015 argued that the impleading petitioner herein is the elected Councillor of 6th Ward in Virudhunagar Municipality. The Level Crossing in LC-403 has been closed for several hours during a day to enable the trains to cross therein. Therefore, the vehicular traffic in the road in question has turned as a challenge to everyone. Until the ROB is constructed therein, the entire public at large would be put to various hardships. Public interest should prevail over the private ones and hence, prayed for the dismissal of this writ petition.
Contempt Petition (MD)No.547 of 2015:
21. In regard to the Contempt Petition (MD)No.547 of 2015, is concerned, Mr.Veera Kathiravan, learned Counsel for the petitioner submitted that the official respondents failed to consider the feasibility of either ROB or RUB, before issuing the notification under Section 8(1) of the Tamil Nadu Highways Act and hence, they have violated the orders passed by this Court and accordingly, they are liable to be proceeded with for contempt of Court and prayed for passing appropriate orders.
W.P(MD)Nos.8929 and 8930 of 2015:
22. Mr.B.Saravanan, learned Counsel for the petitioners in W.P(MD)Nos.8929 and 8930 of 2015, put forth his contentions thus:
22.1. The main grievance of the petitioners in W.P(MD)Nos.8929 and 8930 of 2015 is that the respondents are trying to construct a ROB without providing the service roads on either side.
22.2. This attempt on their part would prejudice the interests of the residents of that locality, including the petitioners, because the free flow of traffic and their ingress and egress to the public road/public street is totally restricted.
22.3. The process for land acquisition to acquire the land on either side for providing the service roads, must be simultaneous. Otherwise, the very purport of constructing the ROB would be defeated.
22.4. Despite they have made a representation to the authorities concerned to consider their plea for providing service roads on either side of the proposed ROB, they never acted upon it, but, proceeded with the impugned notification under Section 8(1) of the Tamil Nadu Highways Act, which led them to move before this Court by filing the present writ petitions and prayed for passing appropriate orders.
W.P(MD)No.8957 of 2015:
23. Mr.Elephant Rajendran, learned Counsel for the petitioner in W.P(MD)No.8957 of 2015 contended as follows:
23.1. The Government decided to construct a ROB at Ramamoorthy Road and issued a publication inviting tender for the construction of a ROB, without providing steps for laying service road.
23.2. The main contention is that the width of the said road at the ingress is 10.5 meters and that egress is 14.5 meters. The ROB is proposed to be constructed with a width of 8.5 meters. Then, the remaining length available is only 1 meter on either side of the bridge. Therefore, it is clear that it is not sufficient to have ingress and egress for the residents of that locality to the other parts of Virudhunagar Town.
23.3. The Government had already constructed ROB in LC 406-A of Virudhunagar Town, wherein the service roads were not provided, due to which, the residents of that locality are deprived of their ingress and egress therein, even after a lapse of 8 years after completion of the above said project. Similarly, in the ROBs constructed at Palangartatham and Thirupparamkumdram level crossings, the service roads were not provided to the inhabitants of the locality.
23.4. Virudhurtagar Municipality had passed a resolution in favour of the petitioner requesting the authorities to provide a road map for the construction of service road by providing facilities like drainage system, water pipe system and light arrangements. The respondents had ignored the above resolution and had decided to construct the road over bridge without providing service road.
23.5. The Indian Road Congress specifies the standard for the service roads while constructing the bridge wherein it is stated that a minimum length of 3 meters have to be provided on either side. But in the case on hand, it is otherwise.
23.6. The right of access to public way is a constitutional right and it has to be protected by the constitutional body like the respondents as well as the Government. Whereas the authorities failed to protect the right of the petitioners.
23.7. In regard to public convenience, he contended that the petitioners are likely to be affected by the proposed construction of the ROB without providing service roads on either side.
23.8. Further, drawing the attention of this Court to various completed projects of Road Under Bridge, viz., Pazhanganatham Level Crossing (along with Road Over Bridge), Thiruparamkundram along with Road Over Bridge, and provided limited use of sub-way at Melakottai Railway Level Crossing near Thirumangalam and limited use of sub-way at Kallikudi (near Virudhunagar) and LC 406-B at Virudhunagar, he concluded that it would be convenient for the entire public at large, including the inhabitants of the locality, to construct a bridge after making provisions for service roads on either side.
23.9. In support of his contentions, Mr.Elephant Rajendran, learned Counsel for the petitioner in W.P(MD)No.8957 of 2015, placed reliance on the following decisions:
(i) Mecca Jumma Mosque, etc. v. The Director of Municipalities, etc. reported in 2001 - 2 - L.W. 817, wherein it is held that 'the right of the municipality is only subject to the right of the owners who are residing, abutting the road. The petitioner is having right to have an access to the main road from his land even on the western side, and such right cannot be taken away by putting shops by the 2nd respondent-municipality for which it has no right, as held in the decisions cited.'
(ii) To contend that the owner of the land adjoining the public street has got a right of access at every point where his or her land adjoins public street, the decision of this Court in Janarthanam, K.V.K. v. State of Tamil Nadu, etc. reported in 1995-1-L.W. 451, is relied on. Paragraph 9 reads thus:
"It is clear from the ratio laid down in the decisions that neither the Government nor the Municipality or any local body has got every right to put up any obstruction over the public street so as to prevent it from having any access to the adjoining land. It has been repeatedly held that the owner of the land adjoining the public street has got a right of access at every point where his or her land adjoins public street. In view of the above ratio, the fencing of an iron fence put up between the land of the petitioner and that of the suit cart track is illegal and on that ground alone the petitioners are entitled to an order of injunction as prayed for."
(iii) Arul M.Futnani v. The District Collector, Kanceepuram and others reported in 2012 Writ L.R. 78, wherein it is laid down thus:
"9. ... The existing cart track is for the use of the public at large and not exclusively for the writ petitioner/appellant. Even after construction of the sewerage pumping station, the remaining portion of the land shall be used as cart track, not by the appellant alone, but by other persons residing in the said locality. In that view of the matter, the learned single Judge rightly held that the appellant cannot claim the right over the cart track exclusively for his personal use."
Hence, he prayed for passing appropriate directions in this regard.
M.P(MD)No.4 of 2015 in W.P(MD)No.8957 of 2015:
24. Mr.T.Lajapathi Roy, learned Counsel for the impleading petitioner in M.P(MD)No.4 of 2015 submitted that the impleading petitioner is also a resident of Virudhunagar Town and in order to support the construction of ROB in the road in question, he has come forward with this impleading petition. Further, he submitted that public interest should always be given importance than that of the individuals and since a larger public interest is involved in the case on hand, it is not just and proper to stall the entire project by way of filing the writ petitions from time to time. Therefore, he prayed for the dismissal of the writ petition.
M.P(MD)No.5 of 2015 in W.P(MD)No.8957 of 2015:
25. Whereas Mr.A.S.Muniyarajan, learned Counsel for the impleading petitioner in M.P(MD)No.5 of 2015 stated that the only intention behind the petitioners is to protract the construction of ROB in either way and he, being a resident of Virudhunagar Town, is able to reflect the basic requirements of the general public residing in that locality. This is another round of litigation to protract the construction of ROB, which is against the public interest and hence, prayed for the dismissal of the writ petition.
In all Writ Petitions and Contempt Petition:
26. In response to the submissions of the learned Counsel for the petitioners in all the matters, Mr.K.Chellapandian, learned Additional Advocate General appearing for the State, made his submissions in the following manner:
W.P(MD)Nos.5207 and 5208 of 2015:
26.1. Virudhunagar Municipality had passed a resolution on 18.11.2014 in Resolution No.431, in and by which, concurrence has been given to hand over Ramamoorthy road to Highways NABARD Wing with the condition that after construction of the bridge, the highways authority has to establish following facilities and civic amenities in that locality:
(i) Water facility-erection of (pumping main), and water connection to the houses No; (ii) Rain water drainage system; (iii) Street light facilities; (iv) Underground drainage system with connectivity to the main drainage line and individual houses in the both side of the Ramamoorthy road.
26.2. Thereafter only, the above said civic amenities should be handed over to the Municipal Administration. The above resolution was passed with absolute majority of the Municipal council, to total number of the Municipal council Members are 36, out of 36 members 31 members were participated in the council meeting, 29 members were vote in favor of the resolution except 2 members who are the petitioners herein.
26.3. Further, the said Resolution has been forwarded to the Secretary to the Government through the Commissioner of Municipal Administration, who, in turn, recommended to the Government along with the copy of Resolution No.431, dated 18.11.2014 that the Virudhunagar Municipality had passed a Resolution giving concurrence to hand over Ramamoorthy Road for construction of a bridge as per the order of this Court dated 25.09.2014.
26.4. Thereafter, the Principal Secretary to the Government had accepted the proposal from the Commissioner of Municipal Administration, Chennai and handed over the Ramamoorthy road to Highways and Minor Port Department, vide his letter No.16/Mu.Se/Na.Ni(Ma)Ku.Va/2014, dated 04.12.2014.
26.5. Accordingly, the road in question, namely, Ramamoorthy road was properly handed over by the Principal Secretary to the Government, Municipal Administration and Water Supply Department. Later, the Principal Secretary to the Government, Highways Department has taken Ramamoorthy road as a Highways Road, based on the proposal of the Chief Engineer (Construction and Maintenance) Chennai and accordingly, the road was classified as Other District Road and permanently brought in to the head of Highways roads.
26.6. The classification of the road is only because of the internal administrative action for the purpose of improvement and maintenance of the road. The statutory provisions are strictly adhered by the respondents.
26.7. The respondents will take necessary steps to provide civic amenities to the residents of Ramamoorthy road as per the Resolution No.431 passed by Virudhunagar Municipality. The provision of Section 61(2) of the Act was followed in the instant case. Hence there is no violation of Tamil Nadu District Municipalities Act and Rules and there is no violation to the provisions of the Constitution of India under Article 243W.
26.8. In the first instance, Resolution No.431, dated 09.06.2011 has been passed by the Municipal Council of Virudhunagar Muncipality to permit the respondents to construct a ROB in Ramamoorthy road and after constructing the ROB, the civic amenities should be provided by the Highways authority.
26.9. Therefore, the Highways authority had taken the road after following the procedures established by law and there is no illegality or infirmity in the impugned Government Order.
W.P(MD)Nos.8250 to 8256 of 2015:
26.10. A Technical Expert Committee was appointed as per the earlier order of this Court dated 25.09.2014. The said committee inspected the spot and collected all details and submitted report on 03.12.2014. Based on the report of the Technical Expert Committee, it was decided to construct a ROB at LC-403 at Virudhunagar.
26.11. As per the Chapter III of the Tamil Nadu Highways Act, 2001, restriction of ribbon development was commenced as per the provisions of the Act. Accordingly under Section 8(1) of Highways Act, the draft notification was published for inviting objections on the proposed fixation of Highways boundary, building line control line, for construction of a ROB at LC-403 at Virudhunagar. A draft notification was published by the fourth respondent on 25.12.2014, calling for the objections for the proposed fixation.
26.12. The notification under Section 8(1) of the Tamil Nadu Highways Act, 2001, has been given for fixing boundary line, building line and control line. Since the said notification has to be given by the Highways Authority, fixing the boundary lines, which is a technical in nature, the objections were called for by the technical authority.
26.13. The fixation of the line is the preliminary step, which is based on analyzing all the technical aspects as well as feasibilities for execution of the project.
26.14. The construction of the ROB at LC-403 was entrusted to the fourth respondent, Divisional Engineer, Highways, NABARD and Rural Roads Division, Paramakudi, who being the jurisdictional Divisional Engineer, is a technical person to receive the objections and fix the boundary lines in terms of technical and feasible aspects.
26.15. Drawing the attention of this Court to the provisions of Section 5(2) of the Tamil Nadu Highways Act, 2001, it is contended that as per Section 5(2) of the Act, the Divisional Engineer, Highways Department of the Government is in-charge of each division, shall be the highways authority for the division. In the case on hand, the fourth respondent - the Divisional Engineer, NABARD and Rural Roads Division, Paramakudi Division, is the Highways Authority. The said division comprised of three Sub-Divisions, viz.,
(i) Paramakudi (N and RR); (ii) Sivagangai (N and RR) and (iii) Virudhunagar (N and RR). Since the construction of ROB at LC-403 comes under Virudhunagar Sub-Division, the fourth respondent is the competent authority to issue draft notification Under Section 8(1) of the Act. Hence, there is neither procedural irregularity nor legal infirmity in issuing the impugned notification.
26.16. As per the draft notification, the fourth respondent conducted an enquiry on 18.02.2015 at Virudhunagar District Collector Office, Virudhunagar, in which, the petitioner and other interested 91 persons had participated as per the order passed by this Court in M.P(MD)No.2 of 2015 in W.P.(MD)No.2036 of 2015 dated 17.02.2015 and hence, the allegation that no enquiry had been conducted by the respondents did not stand to scrutiny.
26.17. Moreover, the proposed ROB is to be constructed in the existing road only and therefore, no need for acquisition of the lands of thepetitioners would arise, however, the acquisition proceedings need be initiated only for providing the service roads on either side of the bridge. But for the litigation, the project is delayed.
26.18. It is further contended that insofar as providing service roads on either side of the ROB, the land acquisition has to be done only in Virudhunagar side and so far Aruppukkottai road is concerned, there is no objection for the same. The existing proposed construction of ROB is 8.5 meters only.
26.19. Ultimately, it is concluded that all the procedures as stipulated in the Act as well as in the earlier order passed by this Court in W.P.(MD).No.2129 of 2012, etc. batch, dated 25.09.2014 and the order passed in M.P(MD) No.2 of 2015 in W.P.(MD) No.2036 of 2015 dated 17.02.2015, have been complied with.
26.20. Regarding the public interest, it is argued that the proposed ROB is being undertaken only in the interest of the public at large and the said project is being protracted by the residents of that locality in one way or the other.
26.21. On completion of the ROB, the bottom of the bridge portion will be utilized by the residents of the both sides of Ramamoorthy Road and the service roads will be formed exclusively for the usage of the residents of the both side of Ramamoorthy road, that will be paved the way for ingress and egress to enter into their properties.
26.22. It is also submitted that for providing service roads in Virudhunagar side, the authorities need only a small extent of lands and to that extent, land acquisition has to be undertaken as per law.
W.P.(MD)Nos.8929, 8930 and 8957 of 2015:
26.23. Insofar as W.P(MD)Nos.8929, 8930 and 8957 of 2015, are concerned, it is contended by the learned Additional Advocate General that the Level Crossing in question is being closed for 88 times every day. To say, the said Level Crossing is closed for nearly 12 hours per day. In such circumstances, the vehicular traffic is limited so as to reach the destinations, so to say, Virudhunagar District Head Quarters Government Hospital and the services of Emergency Ambulances to the Hospital are being restricted in the golden hours to save lives. Therefore, it is imminently necessary to construct a ROB in that locality in public interest.
26.24. In support of his contention that public interest would always prevail over the private interests, the learned Additional Advocate General relied upon the following decisions:
(i) Avishek Goenka v. Union of India and another reported in (2012) 5 Supreme Court Cases 275, wherein it is held as under:
"21. In the present case as well, even if some individual interests are likely to suffer, such individual or private interests must give in to the larger public interest. It is the duty of all citizens to comply with the law. The Rules are mandatory and nobody has the authority in law to mould these rules for the purposes of convenience or luxury and certainly not for crime. We may also note that a Bench of this Court, vide its Order dated 15th December, 1998 in Civil Appeal No.3700 of 1999 titled Chandigarh Administration and Ors. v. Namit Kumar and Ors., had permitted the use of 'light coloured tinted glasses' only while specifically disapproving use of films on the vehicles. Subsequently, in the same case, but on a different date, another Bench of this Court vide its order reported at MANU/SC/0835/2004 : (2004) 8 SCC 446 made a direction that mandate of Sub-rule (2) of Rule 100 shall be kept in mind while dealing with such cases."
(ii) To contend that the public interest is paramount, he placed reliance upon the decision of the Honourable Supreme Court in Md. Murtaza v. State of Assam reported in 2012 AIR SCW 189, wherein it is observed in paragraphs 7 and 8, thus:
"7. Ordinarily everywhere in the world wholesale markets are situated at the outskirts or outside the city limits. No doubt, the shifting of the shops of the wholesalers will cause some hardships to some individuals, but it is well settled that public interest prevails over the private interests. Thus, in Friends Colony Development Committee v. State of Orissa, AIR 2005 SC 1 (vide para 22) this Court observed:
"The private interest stands subordinated to the public good."
8. Similarly, in Sales Tax Officer v. Shree Durga Oil Mills, (1998) 1 SCC 572 : (AIR 1998 SC 591) (vide para 21) this Court observed:
"Public interest must override any consideration of private loss or gain."
(emphasis supplied.)
Therefore, the learned Additional Advocate General appearing for the State, prayed for the dismissal of all these writ petitions.
Virudhunagar Municipality:
27. Mr.M.Muthugeethaiyan, learned Counsel for Virudhunagar Municipality in W.P(MD)Nos.5207 and 5208 of 2015, made the following submissions:
27.1. The petitioners, who are the elected Councillors of Virudhunagar Municipality, already challenged the very same Government Order in W.P(MD)No.4270 of 2015, wherein, this Court passed an order dated 31.03.2015.
27.2. Even then, they are trying to reagitate the issue once again and it is unsustainable in law.
27.3. It is also not in dispute that the petitioners participated in Resolution No.431, dated 18.11.2014 wherein out of 36 Municipal Councillors, 31 Municipal Councilors were participated in the Council meeting and out of 31, 29 Municipal Councillors voted in favour of the Resolution No.431, dated 18.11.2014 and decided to hand over the Ramamoorthy Road to the 4th Respondent for construction of a bridge.
27.4. However, the petitioners being the two dissenting members in the above said Resolutions, made an attempt to challenge the Government Order indirectly, which they cannot achieve directly. It is not tenable in view of the judgment of the Division Bench of this Court in R.Eakamparam and others v. Government of Tamil Nadu and others reported in 2014-4-L.W. 562, wherein it is observed that "after having suffered a defeat in the meeting of the Council, he cannot use of this Court to annul the effect of the resolution passed by overwhelmingly majority and directed the petitioner therein to pay costs to the Municipality to the tune of Rs.20,000/-."
27.5. In the meanwhile, the petitioners have already filed an appeal before the State Government as well as the respondents 1 and 2 stating that the resolution passed by Virudhunagar Municipal Council, dated 18.11.2014 vide Resolution No.431, is against the provisions of the Tamil Nadu District Municipalities Act. The appeal is only in respect of Resolution passed by Virudhunagar Municipality in the Council meeting dated 18.11.2014 and the fixing of the high way line, building line, control line.
27.6. However, the said appeal as well as the reminders did not reveal anything about the G.O.184 dated 23.12.2014 and hence, the present writ petitions are only by way of abuse of process of law. 27.7. Therefore, he prayed for the dismissal of the writ petitions.
ANALYSIS:
28. I have considered the submissions put forth by the learned Counsel for the parties and scrutinized the materials available on record, including the written submissions and decisions in voluminous typed sets of papers.
29. To recollect, the challenge that is made in all the above writ petitions, is to the following:
(i) The impugned order passed by the third respondent the Superintending Engineer, Highways Department, NABARD and Rural Roads, Tirunelveli - 2, in his proceedings K.No.4518/2009/Vu.Po2, dated 14.05.2015.
(ii) G.O.(2D).No.184, Highways and Minor Ports (H.S.2) Department, dated 23.12.2014, in and by which, the road in question, namely, Ramamoorthy Road, has been upgraded as Other District Road and handed over the same to the Highways Department permanently, for the purpose of construction of ROB; and
(iii) The impugned notification issued by the fourth respondent herein published in Dinamani Tamil Daily in ref.Se.Ma.Tho.E/309/Nilam/2014, dated 25.12.2014, under Section 8(1) of the Tamil Nadu Highways Act, 2001, calling for objections of the land owners, whose lands are proposed to be acquired for the purpose of construction of ROB.
30. On a threadbare analysis of the materials available on record, the issues that arise for consideration in all these writ petitions, are:
(I) Whether the impugned Government Order in G.O.(2D).No.184, Highways and Minor Ports (H.S.2) Department, dated 23.12.2014, is bad in law?
(II) Whether the State has complied with all the procedures before issuing the impugned notification dated 25.12.2014, under Section 8(1) of the Tamil Nadu Highways Act, 2001?
(III) Whether the State is justified in informing that service roads can be provided after the construction of the proposed ROB?
Issue No.(I) (Permanent Taking Over of Road in Question)
31. Challenge has been made to the G.O.(2D).No.184, Highways and Minor Ports (H.S.2) Department, dated 23.12.2014, in and by which, the road in question, namely, Ramamoorthy Road, has been upgraded as Other District Road and handed over the same to the Highways Department permanently, for the purpose of construction of ROB.
32. The main contention of the petitioners is that the impugned Government Order is vitiated for the following reasons:
32.1. The State Government failed either to examine or analyse the feasibility for constructing ROB or RUB and to follow the procedures as contemplated under Section 3 of the Tamil Nadu Highways Act, 2001.
32.2. What Virudhunagar Municipality had done by virtue of Resolution No.431 of 2014 on 18.11.2014, is that they have handed over Ramamurthy Road for the construction of a bridge and on such completion, the said road has to be returned to the Municipality.
32.3. If that being so, the impugned Government Order runs contrary to the said Resolution. Thus, there is a clear non-application of mind on the part of the Government in issuing the impugned Government Order.
32.4. Also, the said Government Order ultra vires the provisions of Section 61 of the Tamil Nadu District Municipalities Act, 1920 and Section 3 of Tamil Nadu Highways Act, 2001, for the reason that without the concurrence of the Municipality, the Government cannot permanently take over any road.
33. Whereas the learned Additional Advocate General appearing for the State replied that the impugned Government Order has been passed by the Government after a thorough analysis on the feasibility of constructing of ROB in the road in question. Further, he pointed out that Virudhunagar Municipality had passed a resolution on 18.11.2014 in Resolution No.431, wherein due concurrence has been given to hand over Ramamoorthy road to Highways NABARD Wing with the condition that after construction of the bridge, the highways authority has to establish various basic facilities and civic amenities in that locality. Moreover, the above said resolution came to be passed with absolute majority of the Municipal Council and the two councillors who objected to the passing of the Resolution No.431, has indulged in filing the writ petitions only to delay the project. Since the Municipal Council has given its concurrence, the impugned Government Order cannot be put to challenge and that too, on the ground that no concurrence has been given by the Municipal Council.
34. The learned Additional Advocate General appearing for the State also apprised this Court that the said Resolution was forwarded to the Secretary to the Government through the Commissioner of Municipal Administration, who, in turn, made recommendations to the Government along with the copy of Resolution No.431, dated 18.11.2014 that the Virudhunagar Municipality had passed a Resolution giving concurrence to hand over Ramamoorthy Road for construction of a bridge as per the order of this Court dated 25.09.2014. Thereafter only, the Principal Secretary to the Government accepted the proposal from the Commissioner of Municipal Administration, Chennai and handed over the Ramamoorthy road to Highways and Minor Port Department, vide his letter No.16/Mu.Se/Na.Ni(Ma)Ku.Va/2014, dated 04.12.2014. Hence, the road in question, namely, Ramamoorthy road was classified as Other District Road and permanently brought in to the head of Highways roads and hence, he concluded that the Highways authority had taken the road after following the procedures established by law and therefore, there is no illegality or infirmity in the impugned Government Order and accordingly, prayed for the dismissal of the writ petitions.
35. However, it is the stand of the learned Senior Counsel for the petitioners that the impugned Government Order is liable to be quashed, as it is contrary to the provisions of Sections 61 and 61-A of the Tamil Nadu District Municipalities Act, 1920, read with Section 3 of the Tamil Nadu Highways Act, 2001.
36. In order to appreciate the issue in clear terms, the relevant provisions are reproduced hereunder:
"61. Vesting of public streets and appurtenances in the municipal council -
(1) All public streets in any municipality, with the pavements, stones and other materials thereof, and all works, materials and other things provided for such streets, all sewers, drains, drainage works tunnels and culverts, whether made at the cost of the municipal fund or otherwise, in, alongside or under any street, whether public or private, and all works, materials and things appertaining thereto shall vest in the municipal council.
(2) The State Government may by notification withdraw any such street, sewer, drain, drainage works, tunnel or culvert from the control of the council.
61-A. Duty of municipal council in respect of public streets withdrawn from its control -
Where any public street has been withdrawn from the control of a municipal council under sub-section (2) of section 61 and placed under the control of the Highways Department of the State Government may by general or special order direct-
(a) for the lightning, watering, scavenging and drainage of such street;
(b) for the provision, maintenance and repair of the water-supply mains, drains and sewers in, alongside or under such street;
(c) for the provision, maintenance and repair of footways attached to such street;
Provided that where in the discharge of such duties, it is necessary for the council to open and break up the soil or pavement of any such street, the council shall obtain the previous consent of such officer of the Highways Department, as the State Government may by general or special order specify;
Provided further that in cases of emergency, the council may, without such consent, open and break up the soil or pavement of any such street, but shall, as for as practicable, restore such soil or pavement to the condition in which it was immediately before it was opened and broken up; and a report of the action so taken and the reasons therefore. Shall be sent forthwith to the officer specified under the foregoing proviso."
37. Thus, Section 61 of the Tamil Nadu District Municipalities Act contemplates vesting of public streets and appurtenances in the Municipal Council. In terms of that Section, all public streets in municipality, with the pavements, stones and other materials thereof, and all works, materials and other things provided for such streets, all sewers, drains, drainage works, tunnels and culverts shall vest in Council. However, Section 61(2) empowers the State Government to withdraw such road to its control. Similarly, under Section 61-A, where any public street has been withdrawn under Section 61(2) and placed under the control of the Highways Department of the State Government, it is the duty of the municipal council to provide for the lighting, watering, scavenging and drainage of such street and for the provision of Maintenance and repair of foot pathway attached to such street.
38. At this juncture, it is also necessary to extract the relevant portions of Resolution No.431 passed by Virudhunagar Municipality, on 09.06.2011, hereunder:
( Tamil )
The relevant portion of the Resolution No.431, dated 18.11.2014, reads as follows:
( Tamil )
39. A mere reading of the above Resolution would make it apparently clear that the Municipal Council has given its concurrence for taking over the road in question by the Highways Department, however, with the condition that after construction of the bridge, the highways authority has to establish various basic facilities and civic amenities in that locality. The restriction therefore falls within the ambit of Sections 61(2) and 61-A of the Tamil Nadu District Municipalities Act.
40. Therefore, on consideration of the materials available on record, this Court is of the view that the State Government has passed the impugned Government Order, only after complying with all provisions of law and it could be summed up thus:
(i) The Resolution No.431 came to be passed by Virudhunagar Municipality on 18.11.2014;
(ii) The same has been forwarded to the Secretary to the Government through the Commissioner of Municipal Administration;
(iii) Thereafter, the Secretary to the Government made recommendations to the Government along with the copy of Resolution No.431, dated 18.11.2014 that the Virudhunagar Municipality passed a Resolution and thereby, gave its concurrence to hand over Ramamoorthy Road for construction of a bridge as per the order of this Court dated 25.09.2014;
(iv) Later, the Principal Secretary to the Government accepted the proposal from the Commissioner of Municipal Administration, Chennai and handed over the Ramamoorthy road to Highways and Minor Port Department, vide his letter No.16/Mu.Se/Na.Ni(Ma)Ku.Va/2014, dated 04.12.2014;
(v) Subsequently, the road in question, namely, Ramamoorthy road was classified as Other District Road and permanently brought into the head of Highways roads; and
(vi) Therefore, all the procedures prescribed by law have been adhered to by the Government before passing the impugned Government Order. Hence, the provisions of Section 61 of the Tamil Nadu District Municipalities Act, are not violated.
41. Accordingly, Issue No.(I) is answered as against the petitioners.
Issue No.(II) (Pre-requisites)
42. This issue relates to the issuance of the impugned notification under Section 8(1) of the Tamil Nadu Highways Act, 2001. Therefore, the relevant provisions of the Tamil Nadu Highways Act, 2001, before deciding the issue on hand are extracted hereunder:
"Section 2(7): "division" means the area declared by the Government under section 4;"
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"Section 2(11): "Government" means the State Government;"
"Section 2(12): "highway" means any road, way or land which is declared to be a highway under section 3 and includes -
(a) all land appurtenant thereto, whether demarcated or not;
(b) the slope, berm, burrow pits, foot paths, pavement, whether surfaced or unsurfaced;
(c) all bridges, culverts, cause ways, carriageways or other structures built on or across such road or way;
(d) the foot-way attached to any road, public bridge or causeway;
(e) the drains attached to any such street, public bridge or causeway and the land, whether covered or not by any pavement, varanda or other structure, which lies on either side of the roadway upto the boundaries of the adjacent property, whether that property is private or property belonging to the Central Government or any State Government; and
(f) all fences, trees, posts and boundaries, hectometre and kilometer stones and other highway accessories and materials stacked on such road or public bridge or causeway.
but does not include a National Highway declared as such by or under the National Highways Act, 1956 (Central Act 48 of 1956).
"Section 2(13): "Highways Authority" means the officer appointed under sub-section (2) of section 5;"
"Section 2(14): "highway boundary" means the highway boundary as may be fixed under section 8."
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"Section 2(16):"local authority" means -
(i) any Municipal Corporation established under any law for the time being in force; or
(ii) any Municipal Council constituted under the Tamil Nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920); or
(iii) any District Panchayat or any Panchayat Union Council or any Village Panchayat constituted under the Tamil Nadu Panchayats Act, 1994 (Tamil Nadu Act 21 of 1994);"
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"Section 2(21): "State Highways Authority" means the officer appointed under sub-section (1) of section 5;"
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"Section 3: Declaration of roads, ways or lands as highways.- On the recommendation made by the State Highways Authority, the Government may, by notification, declare any road, way or land to be highway and classify it as any one of the following, namely:-
(i) a State Highway;
(ii) a major district road;
(iii) other district road; or
(iv) a village road:
Provided that where such road, way or land whether in whole or part is owned by any local authority, such notification shall be issued with the concurrence of that local authority by a resolution passed by it in this behalf."
"Section 4: Declaration of divisions.- The Government may, by notification, declare any area to be a division for the purpose of the highways in such area."
"Section 5: Appointment of Highways Authorities.-(1) The Government may, by notification, appoint an officer of the Highways Department of the Government not below the rank of the Chief Engineer, as the State Highways Authority.
(2) The Divisional Engineer, Highways Department of the Government in- charge of each division, shall be the Highways Authority for that division."
"Section 6: Functions of Highways Authorities.-(1) The State Highways Authority shall be responsible for the overall supervision of the construction, maintenance, development or improvement of the highways in the State and for the restriction of ribbon development along the highways. The State Highways Authority shall, from time to time, issue such instructions as may be necessary to the Highways Authorities for carrying out the purposes of this Act.
(2) Every Highways Authority may, with the approval of the State Highways Authority, undertake the construction, maintenance, development or improvement of any highway and for restriction of ribbon development along such highway, including for the prevention and removal of encroachments and for all matters necessary or incidental thereto, in its division, in such manner and within such time as may be specified by the State Highways Authority in this behalf."
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Section 8.Power to Fix Highway Boundary, Boundary Line, Control Line, etc:
1. The Highways Authority of any division may, by notification, in relation to any highway or area in that division, where the construction or development of highway is undertaken or proposed to be undertaken, fix-
(a) the highway boundary, boundary line or control line; or
(b) the highway boundary and the boundary line ; and
(c) the building line and the control line:
Provided that before the publication of the notification under this sub- section, a draft of the said notification shall be published inviting objections, if any, on the proposed fixation.
2. The draft of the notification under sub-section (1) shall contain-
(a) all details of lands situated between the highway boundary line and control line proposed to be fixed and in the case of new works, the lands and persons benefited by the construction or development of such highway; and
(b) notice requiring all persons likely to be affected by such notification, to make their objection or suggestions, if any , in writing, with respect to the issue of such a notification, to the Highways Authority within such period as may be prescribed.
3. After considering the representations, if any, received under sub-section
(2), the Highways Authority may, with the approval of the State Highways Authority-
(i) Drop the proposal to fix the highway boundary, the building line or the control line; or
(ii) Publish the final notification under sub-section (1) with such modifications as may be considered necessary.
4. Notwithstanding anything contained in the sub-sections (1), (2) and (3), the Government may, in consultation with the State Highways Authority, having regard to the situation or the requirements of any highway or the condition of the area through which such highway passes,-
(a) Fix different building line and control line for such highway; or
(b) Refrain from fixing the building line or control line for such highway or portion thereof.
Section 9: Restriction on building.- On or after the date of the publication of the notification under sub-section (1) of section 8 in relation to any highway or any area, no person shall, in such highway or in such area, in respect of any land lying between the highway boundary and the building line or between the building line and the control line, as the case may be, -
(a) erect any building or make or extend any excavation or carry out any mining or other operation in, or over such land or make any material change in the use of, or construct, form, or layout any works on such land; or
(b) construct, form or layout any means of access to or from such highway, except with the written permission of the Highways Authority and in accordance with such terms and conditions, as may be specified in such permission.
43. In CeeDeeYes's Standard Towers (P) Ltd., v. The Collector of Chennai reported in 2013 (1) CWC 425, the importance of the procedures relating to compliance of Section 8 of the Tamil Nadu Highways Act have been elaborately dealt with. Paragraphs 6 to 9 would read as follows:
"6. In fact, a Division Bench of this Court, in R.Kumar v. State of Tamil Nadu (2007 (2) MLJ 384), had an occasion to deal with Section 8(4)(a) of the Act in a case connected to OMR Road presently called IT Corridor coming under the jurisdiction of the Tamil Nadu Highways Act, and concluded as follows:
"Hence, we hold that once it is a Highway, Highway authorities can fix different building line and control line for such highway."
In the present case, the Road in question was not declared as Highway and no material whatsoever has been produced before this Court in that regard. That being so, in my considered view, issuance of notification under Section 15(2) without complying with the requirement under Section-8 would only reflects the arbitrary exercise of power.
Though the difference between Section 8(1)(2)and(3) and 8 (4) of the Act is subtle - that makes a huge difference in working out of this Act, when Section 8(1)(2)and(3) envisages for issuance of Notification calling for objections from the landowners to fix the Highway boundary, boundary line, building line, sub-Section 4 being notwithstanding clause does not say that the Government may refrain from fixing the Highway boundary when it says, the Government may refrain from fixing the building line or control line for such highway. In view of this difference in the application of the provision, resorting to Section 15 (2) of the Act to acquire the petitioner's land without first complying Section 8 is arbitrary exercise of power.
7. Further, earlier, this Court had passed an order of interim stay of dispossession alone on 03.03.2004 and that does not mean that the respondents should keep quiet from passing the Award. Admittedly, till now, the respondents have not passed any Award in respect of the land in dispute. A letter, dated 12.04.2012, in Rc.Lr.No.MG/LA-001/2002,, written by one G.Sornam Amutha, Special Tahsildar (LA) Highways, Mambalam-Guindy Taluk at Collector's Office, Chennai-1, addressed to the Divisional Engineer (Highways), Projects, Division-I, Chennai-44, also admits the case of the petitioner that no Award or compensation has been paid to the land owner. Hence, it is necessary to extract below the relevant portion of the said letter,
" In this regard, I wish to state that the Principal Secretary and Commissioner of Land Administration in Lr. No.M2/13702/2010, dt.28.05.2010 instructed that since the stay was granted for dispossession alone and that the Hon'ble High Court ordered that other proceedings to go on, in this case except 9% interest award has to be passed giving interest 12% additional market value to the land owner and that the particular piece of land has to be included for passing the draft award in consultation with the Government Pleader. Accordingly draft award was passed except for 9% interest, only to proceed further after the outcome of pending case by the Hon'ble High Court. Since the W.P. No.39261/03 is still pending before the Hon'ble High Court, no further action was taken in this regard and no money as compensation has been paid to the land owner so far."
Therefore, having regard to the above lapse that neither any Award has been passed nor the owner of the land / interested person has been paid with the compensation till date coupled with the other lapse that the Highways Authority issued the impugned notices without complying with the pre-requisites by issuing a Notification under Section 8(1) of the Act fixing Highway Boundary, building line or control line and without even issuing notice as per Section 8(2) (b) of the Act to the person/persons likely to be affected by such Notification, it can only be concluded that issuance of the notices under Section 15(2) is nothing but arbitrary exercise of power.
Therefore, the District Collector has wrongly exercised the powers authorized to him through G.O. Ms. No.206, Highways (HN2) Department, dated 29.09.2003 without following the procedure as contemplated under Section-8. Further, when the respondents have not even passed the Award till now, giving compensation to the land owner/petitioner herein, on this ground also, the entire proceedings fall to ground. However, since the petitioner, by his letter dated 03.04.2002, which finds place at Page No.291 of the typed-set of papers, voluntarily came forward to hand over the land in dispute to the respondents on condition that the petitioner is given the TDR benefits by the CMDA, whereupon, he is also prepared to file an application for withdrawal of the Writ Petition making it clear that he will not make any claim for compensation which will run to about fifty lakhs rupees, this Court finds all justification to accept such balanced plea.
8. Even though Mr.K.Rajasrinivas, learned counsel appearing for the CMDA argued that the petitioner's land was acquired long time ago by paying compensation and when the same became subject matter of dispute, the CMDA granted TDR; therefore, once again, the petitioner cannot ask for TDR benefit, such argument appears to be as vague as it is for the reason that there is no pleading in that regard and further, no document whatsoever has been filed by the CMDA to substantiate that the petitioner's land covered by the present impugned notices were acquired on earlier occasion by paying compensation and to show transfer of TDR benefits. Therefore, the unreasonable stand of the CMDA that they are even prepared to pay more value viz., Rs.50 lakhs to the petitioner by defraying the public exchequer instead of granting TDR benefits is wholly misconceived.
9. In the above circumstances, this Court, after finding that the impugned notices issued under Section 15(2) of the Act are vitiated for the reason that the respondents have not followed the pre-requisites as mentioned in Section 8 of the Act and also by taking note of the fact that no award has been passed to pay compensation to the petitioner and further, by keeping in mind the highway widening work involving utmost public importance should be allowed to continue and it should not be stultified, directs the respondents to grant, in lieu of the compensation based on current market value, TDR Benefits in favour of the petitioner/M/s.CeeDeeYes Standard Towers Private Limited, who are the registered owners of the property as they have undertaken not to claim for compensation based on today's market value, within a period of two months from the date of receipt of a copy of this order, failing which, the impugned notices shall stand quashed, in which event, needless to mention that the respondents are at liberty to proceed afresh in terms of the Act by following Sections-8 and 15 thereof including payment of compensation for the land on today's market value, if not paid earlier to the petitioner. Writ Petitions are ordered on the above terms. Connected Miscellaneous Petitions are closed."
44. From the above decision, it is crystal clear that the declaration of the road in question as Highways is very much essential and if there is any non-compliance of the said provision, the authorities cannot proceed further in the matter. In the case on hand, the road in question has been properly declared as Other District Road and thereafter only, the impugned Government Order came into existence.
45. Insofar as the competency of the authority who issued the impugned notification is concerned, the learned Additional Advocate General drew the attention of this Court to Section 5(2) of the Tamil Nadu Highways Act, 2001 and pointed out that as per Section 5(2) of the Act, the Divisional Engineer, Highways Department of the Government is in-charge of each division, shall be the highways authority for the division.
46. In the case on hand, the fourth respondent - the Divisional Engineer, NABARD and Rural Roads Division, Paramakudi Division, is the Highways Authority, because the said division comprised of three Sub-Divisions, viz., (i) Paramakudi (N and RR); (ii) Sivagangai (N and RR) and (iii) Virudhunagar (N and RR). As the construction of ROB at LC-403 falls within that Sub-Division, the fourth respondent is the competent authority to issue draft notification Under Section 8(1) of the Act. This Court, therefore, is of the view that the attack made by the petitioners to the impugned notification on that ground also, fails.
47. Insofar as the conduct of enquiry, it is seen that the fourth respondent conducted an enquiry on 18.02.2015 at Virudhunagar District Collector Office, Virudhunagar. The petitioner and other interested 91 persons had participated as per the order passed by this Court in M.P(MD)No.2 of 2015 in W.P.(MD)No.2036 of 2015 dated 17.02.2015 and therefore, the petitioners could not raise that ground also.
48. Now, this Court is of the considered opinion that the notification impugned in the present writ petitions is only a draft notification issued under Section 8(1) of the Tamil Nadu Highways Act, 2001 and therefore, the petitioners and other persons who are likely to be affected by such notification, can file their objections to the said notification in writing and thereafter, the authority concerned will decide the same on merits and in accordance with law.
49. Accordingly, Issue No.(II) is also answered as against the petitioners.
Issue No.(III) (Service Roads)
50. It relates to providing the service roads on either side of the proposed ROB in Ramamoorthy Road.
51. The sum and substance of the plea of the petitioners is that if the ROB is constructed without providing the service roads, it will cause great prejudice to them including the residents of that locality. Because the width of the road in question is very narrow, so to say, there is no sufficient width for providing service roads on either side. In such an event, the State could not proceed with the construction of the ROB, when there is a least possibility for providing service roads.
52. The apprehension of the petitioners is that if the State proceeds with the construction of the ROB without providing the service roads simultaneously, they could not provide the service roads in future. In the impugned order, the authority concerned informed the petitioners that the service roads will be provided after the construction of the ROB in the road in question.
53. The petitioners have also expressed their apprehension as to the difficulties faced by the residents of the other areas where ROBs were constructed in the State without providing the service roads and pleaded that they would also be put to such an unbearable agony ever.
54. No doubt, this Court could visualise the reality in a wide manner in the light of the apprehension of the petitioners. Admittedly, the very width of the road in question is narrow, that made the authorities concerned to go for acquisition of the land of the residents therein. In such circumstances, if they are proceeding to construct the ROB without simultaneously providing the service roads on either side, then, definitely the plight of the petitioners is in peril. Therefore, this Court is of the view that the State has to make a detailed study on the project for construction of ROB in the road in question and arrive at a conclusion as to whether the construction of ROB is to be undertaken by providing service roads on either side, simultaneously.
55. The learned Additional Advocate General has submitted that the width of the bridge as proposed is only 8.5 meters and the road available is 18.5 meteres. The same has been disputed by the respective learned Counsel appearing for the petitioners in W.P(MD)Nos.8929, 8930 and 8957 of 2015. It is a factual but necessary aspect, which necessarily has to be looked into and addressed by the state before the completion of the ROB. As rightly contended by the learned Counsel for the petitioners, the right to ingress and egress is fundamental to the right of movement and the construction of the bridge by shutting out the access would defeat the very purpose of the construction activities. Therefore, the respondents are directed to parallelly consider the claim of the petitioners in the above writ petitions and take appropriate steps to ascertain the actual available area for laying service roads on either side and if necessary, it is for them to initiate necessary proceedings as per law for providing such service roads, including the acquisition of lands and complete the same along with the ROB construction works. If there is a necessity to acquire lands on either side for the purpose of service roads, the same has to be adhered to only in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
56. Further, this Court while disposing of the matter earlier, issued certain directions and this Court, on a careful analysis of the documents and pleadings before this Court, comes to the conclusion that the orders have been complied with and the impugned notifications are in order. Therefore, there is no violation of the orders of this Court made in W.P(MD)Nos.2129 of 2012 (batch) or W.P(MD)Nos.4235 of 2015 (batch).
57. Accordingly, Issue No.(III) is answered as above.
CONCLUSION:
58. The initial notification was published in 2008. 8 years have passed and not even a stone has moved. The petitioners seemed to be motivated personally against the project, which is evident from the challenge made by them in the present writ petition without placing the actual facts and without verification. This Court in the preceding paragraphs rejected the challenge to the notification. As the legal maxims Necessitas publica est major quam private and Jura publica anteferenda privatis juribus lay down, Public necessity is greater than private necessity and Public rights are to be preferred to private rights. Just because few individuals are aggrieved, the project which will benefit thousands cannot be permitted to be stalled for technical reasons, which also have been found to be false. While disagreeing with the demeanor of the petitioners who have challenged the notification, this Court, considering the legal maxim, Interest reipublicase ut sit finis litium meaning, "it is in the interest of the State that there be an end to litigation", imposes a cost of Rs 25,000/- (Rupees Twenty Five Thousand only) on each of the petitioners in W.P(MD)Nos.5207 and 5208 of 2015 and W.P(MD)Nos.8250 to 8256 of 2015 to be paid to the Chief Justice Relief Fund, within two weeks from today. The respondents shall forthwith continue the process initiated by them and complete the project as expeditiously as possible.
59. In the result,
(i) W.P(MD)Nos.5207 and 5208 of 2015 are dismissed with costs. Consequently, the connected miscellaneous petitions are dismissed;
(ii) W.P(MD)Nos.8250 to 8256 of 2015 are dismissed with costs. Consequently, the connected miscellaneous petitions are dismissed;
(iii) W.P(MD)Nos.8929, 8930 and 8957 of 2015 are disposed of, with the above observations. No costs. Consequently, the connected miscellaneous petitions are closed.
(iv) Insofar as the impleading petitions filed in the respective writ petitions are concerned, they are closed in view of the order passed in the main writ petitions.
(v) Contempt Petition(MD)No.547 of 2015 is also closed, in the light of the dismissal of the other writ petitions. Consequently, the connected Sub Application is closed.