S.S. International, a Division of S.S.i. Media India Pvt. Ltd. Rep. by Its Managing Director, D. Muralidharan Vs. the Secretary to Government of Tamil Nadu, Highways Department, - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. sections 5a & 4; [p. sathasivam, m.e.n. patrudu & s. manikumar, jj] land acquisition (tamil nadu) rules, rule 4 time limit for filing objections held, time limit prescribed under section 5-a for filing objections cannot be further enlarged by form b notice issued under rule 4. authorities were directed to modify form b. sections 5a (2); [ hearing of objectors - held, it is mandatory and making a further enquiry by the collector is discretionary. if the objectors have not filed any objection with8in 30 days but come forward with oral objection, even then, the collector must hear. the hearing is mandatoryorderk. suguna, j.1. (i) w.p. no. 39339/2006 is filed to quash the impugned order of the second respondent dated 18.8.2006 issued in letter no. centre median/2006/advt.perm/ssi/d-1 and for further direction to forbear the respondents from in any manner interfer with the petitioner's right in respect of the centre median from spencer plaza junction to l.i.c.(ii) w.p.no.39340/2006 is filed challenging the order of the second respondent dated 18.8.2006 issued in letter no. centre median/2006/advt.perm/tn lion and for further direction to forbear the respondents in any manner interfere with the petitioner's right in respect of the centre medians at gwt road km 3/6-4/6.(iii) w.p.no.39359/2006 is filed challenging the order of the second respondent dated 18.8.2006 issued in letter no. centre.....

Judgment:
ORDER

K. Suguna, J.

1. (i) W.P. No. 39339/2006 is filed to quash the impugned order of the second respondent dated 18.8.2006 issued in Letter No. Centre Median/2006/Advt.Perm/SSI/D-1 and for further direction to forbear the respondents from in any manner interfer with the petitioner's right in respect of the Centre Median from Spencer Plaza Junction to L.I.C.

(ii) W.P.No.39340/2006 is filed challenging the order of the second respondent dated 18.8.2006 issued in Letter No. Centre Median/2006/Advt.Perm/TN Lion and for further direction to forbear the respondents in any manner interfere with the petitioner's right in respect of the Centre Medians at GWT Road Km 3/6-4/6.

(iii) W.P.No.39359/2006 is filed challenging the order of the second respondent dated 18.8.2006 issued in Letter No. Centre Median/2006/Advt.Perm/Vantage/D-1 and for further direction, directing the respondents to renew the license in favour of the petitioner in connection with various stretches of centre medians without following the procedure contemplated in the Tamil Nadu highways Act 2001 and the Control of National Highways Land Traffic Act, 2002.

(iv) W.P.No.39360/2006 is filed for the issue of writ of mandamus to forbear the respondents and their men in any manner dispossessing the petitioner in respect of its occupation of the centre medians mentioned in the order under letter No centre Median/2006/Advt.Perm/Vantage/D-1 dated 18.8.2006 of the second respondent without following the procedure contemplated in the Tamil Nadu Highways Act 2001 and the Control of National Highways Land Traffic Act, 2002

(v) W.P. No. 40196/2006 is filed challenging the order of the second respondent dated 18.8.2006 issued in Letter No. Centre Median/2006/Advt.Perm/Sterlink and to forbear the respondents from in any manner interfere with the rights of the petitioner in respect of the Centre Median at Ripon Building, Central Railway General Hospital at Km 0/0-0/9 GWT Road and at Km 3/7-4/0 on GST Road (TVS to whites Road Junction)

(vi) W.P. No. 41136/2006 is filed challenging the order of the second respondent dated 18.8.2006 issued in Letter No. Centre Median/2006/Advt.Perm/DO and for further direction, directing the respondent to renew the licence in favour of the petitioner in connection with the stretch of centre median mentioned in the said order.

(vii) W.P. No. 41137/2006 is filed for the issue of writ of mandamus to forebear the respondent and their men from in any manner dispossessing the petitioner in respect of its occupation of the centre medians mentioned in the order under letter No. Centre Median/2006/ADvt.perm/DO dated 18.8.2006 of the second respondent without following the procedure contemplated in the Tamil Nadu Highways Act 2001 and the Control of National Highways Land Traffic Act, 2002.

(viii) W.P. No. 41138/2006 is filed challenging the order of the second respondent dated 16.8.2006 issued in Letter No. Centre Median/2006/Advt.Perm/SKY/D-1 and for further direction, directing the respondent to renew the licence in favour of the petitioner in connection with the stretch of centre median mentioned in the said order.

(ix) W.P. No. 41139/2006 is filed for issue a Writ of Mandamus to forbear the respondent in any manner dispossessing the petitioner n respect of its occupation of the centre medians mentioned in the order under letter No. Centre Median/2006/Advt.Perm/SKY/D-1 dated 16.9.2006 of the second respondent without following the procedure contemplated in the Tamil Nadu Highways Act 2001 and the Control of National Highways Land Traffic Act, 2002.

(x) W.P. No. 41170/2006 is filed challenging the order of the second respondent dated 18.8.2006 issued in Letter No. Centre Median/2006/ Advt. Perm/DO and for further direction to forbear the respondents from in any manner interfere with the rights of. the petitioner in respect of the Centre Medians at Central thirumangalam Road, KM 7/6-8/6.

2. According to the learned Senior Counsel appearing for the petitioners, the second respondent granted permission in the form of license agreement to provide safety grills and to maintain the Centre Median etc. at various places mentioned in their respective affidavits for a period ranging from one year to three years and in respect of W.P. No. 41136/2006, though, originally license was granted for a period of two years, subsequently, for further one year license was extended from 1.12.2005 to 1.12.2006 and also in respect of W.P. No. 41138/2006 originally, license was granted for a period of one year from 13.9.2004 and subsequently, the same was extended from 13.9.2006 to 12.9.2006 and in W.P. No. 41170/2006 also originally, license was granted for one year and subsequently, the same was extended. So also in W.P. No. 41137/2006 and 41139/2006, originally license was granted for a period of one year and subsequently, the same was extended for a further period of one year which ended on 31.8.2006 in respect of the petitioner in W.P. No. 41137/2006 and in respect of W.P. No. 41139/2006 upto 12.9.2006.

Though as per the license agreement, the agreement is for the period specified therein, according to the learned Senior counsel as per the terms of the said license agreement, the terms and conditions contained in the said agreement has to be observed and performed by the Government further. As per Clause 10 and 11, specifically Clause 10 while the lease is in existence if the respondents do not like to renew the lease, for terminating the lease or refusing the renewal of the lease, one week notice should be given. According to the learned Senior Counsel as far as this one week notice mentioned in Clause 10 is concerned, it will not apply for terminating the license during the course of the license for which an agreement was entered into. In support of this contention, learned Senior Counsel has relied on Clause 11 of the said agreement which reads as follows:

11. That, the Government shall, however, retain its rights to terminate this license at any time after giving a notice of one-week duration. In the event of the Government termination the license, no compensation will be paid for structures put up therein.

3. According to the learned Senior Counsel, since a specific provision has been made in Clause 11 to terminate the license at any time, after giving notice of one week duration, the Clause 11 will apply to terminate the license before expiry of three years period. As far as the Clause 10 is concerned, it has to be applied only in the case of renewal. As stated above, if the respondent do not want to renew the license, the same has to be informed by issuing one week notice. But, no notice of that kind was issued to the petitioner and the petitioner has also continued the work and no objection has also been raised by the respondent for this. According to the learned Senior Counsel, the petitioner, in fact expecting the renewal of license but all of a sudden the respondent has granted license in favour of the third respondent and has issued the impugned notice dated 18.8.2006. As such according to the learned Senior Counsel, basing on Clause 10 and 11, since the petitioner was allowed to continue, even after completion of the license on 12.6.2006, there is a presumption that the petitioner license was renewed.

4. According to the learned Senior counsel though impugned notice is dated as 18.8.2006, the same was served to the petitioner only on 10.10.2006. By putting the ante date, the respondent has issued the impugned order. Hence, according to the learned Senior counsel, it is an arbitrary one. According to the learned Senior counsel, if the impugned notice has been actually issued on 18.8.2006, certainly that need not have been kept pending till 09.10.2006. Apart from this, since the respondent decided to grant the renewal, the petitioner was allowed to deposit Rs. 20,000/- by way of demand draft drawn in favour of the 2nd respondent for renewal of the said license. That apart, according to the learned Senior Counsel, even assuming they are not entitled for the renewal of the license, they must follow the procedure, for evicting the petitioner, contemplated under the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act 1975. Without following the same, the impugned notice cannot be issued as against the petitioner.

5. Learned senior counsel appearing for the writ petitioner submitted that even after renewing the license for the period of one year, the impugned order has been passed as if the lease has been terminated as early as June 2006. Apart from this, according to the learned Counsel for the petitioners, the work carried out by the petitioner have been appreciated and it is apparent from the document enclosed in the typed set of papers. Inpite of it, all of a sudden, this impugned notice has been issued, which according to the learned Counsel, is unreasonable and arbitrary.

6. Learned Senior Counsel has further submitted that without following the above said procedure, coercive dispossession cannot be resorted to. That apart, according to the learned Senior Counsel, after passing the impugned notice by proceedings dated 25.8.2006 in favour of the third party who is impleaded as third respondent herein, if at all the Government do not want to renew the license and they want to give it to somebody else, they must follow the procedure and public tender should have been called for. But in this case, without following the procedure of public tender, the license has been given to the third respondent which is against the public policy. That apart, the petitioner had invested huge amount and also engaged workers also expecting renewal of the license. According to the learned Senior Counsel, the petitioner had legitimate expectation, but, now, the impugned notice has been issued contrary to the same. As such, the impugned notification has to be quashed and the respondents should be restrained in any manner interfering with the petitioner's right in respect of the Centre Median which has been allotted to them as per the agreement entered by the second respondent.

7. On the other hand learned Senior counsel appearing for the third respondent in W.P. No. 39339/2006 has contended that as far as the petitioners are concerned, even as per the agreement entered into between the petitioners and the respondent, it is not the lease but it only a license. As such, the provision of the Easement Act will apply. As per the Indian Easement Act 1882, under Section 52, the term license has been defined as follows.

Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful and such right does not amount to an easement or an interest in the property, the right is called a license.

8. As per the above said provision, when license is granted for a limited period as soon as the period expires, the license comes to an end. According to the learned Senior counsel, the question of issuing one week notice with regard to non-renewal of the petitioner's license does not arise. Any agreement entered into with regard to any license is subjected to the provision of the Indian Easements Act 1882, and over riding the statutory provision, the agreement cannot be entered into by way of a contract. According to the learned Senior counsel, since the agreement is only in respect of a license, as per terms of Clause 10, the same is applicable only in the event of termination of the license prior to the expiry of three years period.

9. As per the provision of Clause 10 and 11, the Government may or may not renew the license after the expiry of the said period. As far as the license is concerned, there is no vested right. As far as Section 63 of the Indian Easements Act, 1882, is concerned, after the expiry of the license period, the licensee is entitled to a reasonable time to leave the property affected thereby and to remove any goods which he has been allowed to place on such property. As far as the petitioners are concerned, according to the learned Senior counsel the petitioner's license has come to a end, even after a reasonable time, they have not removed the goods thereon. As such, according to the learned Senior Counsel after the expiry of the license period, the petitioners are unauthorised occupant. Consequently, by the impugned order, the petitioners had been directed to evict and remove the unauthorised structure in the above said Median in the Highway land immediately.

10. That apart, according to the learned Senior Counsel as far as the application of provision of Tamil Nadu Public premises, (Eviction of Unauthorised occupants) Act 1882 is concerned, it will apply only in cases of public premises. The terms of public premises is defined in the above said Act in Sub-clause (e) of Section 2 which reads as follows:

(e) of any other person holding land under grant from the Government otherwise than by way of licence,

and, as to lands, save also in so far as they are temple site or owned as house-site or backyard, are and are hereby declared to be the property of Government except as may be otherwise provided by any law for the time being in force subject always to all rights of way and other public rights and to the natural and easement right of other land-owners, and to all customary rights legally subsisting.

As far as the petitioners are concerned, no premises have been given on lease but as per the agreement what has been given to the petitioners is only a license to upgrade and maintain masonry walls, grills of mild steel and flat iron rods for the outer section and cross section and to up grade and maintain the centre median as per the approved drawing and specifications. As such, the provision of the above said Act need not be followed. That apart, with regard to the subsequent license agreement is concerned, according to the learned Senior Counsel what is under challenge is only the notice issued to the petitioner dated 18.8.2006 wherein they have been requested to remove the unauthorised structure in the above said Centres and not the agreement granted in favour of the third respondent. As such, the point advanced by the learned Senior Counsel for the petitioner in this regard is unsustainable.

11. I have considered the submission of the learned Senior Counsel for the petitioners as well as the respondents. Admittedly, by an agreement dated 13.6.2003, 2.6.2004, 13.6.2003, 13.6.2003, 9.5.2003, 31.8.2004, 31.8.2004, 13.9.2004, 13.9.2004 & 28.5.2004 the petitioners were given license for the construction, upkeeping and maintenance of the Centre median at Spencer Plaza junction and it is not the lease. As per the terms of the said agreement, the said agreement will be in force for the period mentioned in the agreement as stated above. It is an admitted case that no order has been passed renewing the license subsequently. It is an admitted fact that there is no deeming clause in the above said contract to the effect that in the event of the respondents failure to renew the license or refused to renew the license within a stipulated period, the license is deemed to have been renewed. Hence, the argument advanced by the learned senior counsel for the petitioners, basing on Clause 10 and 11 that one week notice should have been given to the petitioner when the official respondents do not want to renew the license, cannot stand. What is granted is only a license and if it is a license, provision of the Indian Easements Act 1882 will apply. Under Section 52 of the said Act the term license is defined. Under Section 62(c) if the license is granted for a limited period, on the expiry of that period, the license is deemed to have been revoked. Any agreement entered with reference to a license certainly should be in conformity with the provision of the said Act. When a deeming provision is incorporated in Section 62, the question of giving one week notice while the license is in existence with regard to the nonrenewal of the license, in my opinion, does not arise. Besides, termination of license will come only when the license is subsisting. The renewal of license will come after the expiry of license period. Hence, Clause 10 has to be read in conjunction with Clause 11 of the said agreement which makes it very clear by giving one month notice the license can be terminated by the Government at any time. The argument of the petitioner that the Government, in fact, wanted to renew the license subsequently in order to favour the third party, the impugned order has been passed is not supported by document.

12. That apart, as far as the other argument of the learned Senior counsel that though the order is dated 18.8.2006, the same was issued only on October 2006, consequently, it is an ante dated order is concerned, as per the typed set of papers filed by the third respondent, an agreement was entered into with the third respondent by proceedings dated 25.8.2006 and subsequent to this, in September 2006, this agreement has been executed, hence, the question of preparing the impugned order in October and ante dating it as if the same has been signed during August will not stand. That apart, the other argument of the learned Senior counsel for the petitioners with regard to the following the procedure of the Tamil Nadu Public Premises (Eviction of unauthorised occupants) Act 1975 is concerned, as rightly contended by the learned Counsel for the third respondent as per the said Act, the same is applicable only with regard to the premises but here the license has been given only to upgrade and maintenance of the centre median. As such, the provision of the said Act will not apply.

13. The arguments of the learned senior counsel for the petitioner that , as per the terms of the impugned notice, the respondents ought not to have termed the petitioners as unauthorised occupants is concerned, as per Section 63 of the Easements Act, the petitioner, after the expiry of the license period, should have removed the things within a reasonable time since the same was not done they become unauthorised occupants. Consequently, the impugned notice has been issued. The other contention with regard to the license issued to 3rd respondent without resorting to public tenders is concerned, what is under challenge is only the letter issued to the petitioner by proceedings dated 18.8.2006 and the license issued in favour of the third respondent is not under challenge. As such I am not inclined to go into the validity of the license issued in favour of the third respondent. For these reasons, I find no merit in these writ petitions and the same are dismissed. Consequently, connected MPs. are closed.

Writ Petition Nos. 39339, 39340, 39359, 39360, 40196 41136 to 41139 & 41170 of 2006

Today, Mr. Harshad. P. Gokulaney, learned Counsel for the petitioner representing M/s. Menon and Gokulaney Associates, and the learned Counsel appearing for the petitioners in W.P. Nos. 39339, 39340, 41170 and 401960 of 2006 had submitted that the petitioners should be given time to remove the things which have been stored in the Centre Median wherein the petitioners were granted license for putting up of Centre Median. In view of this submission, three weeks time is granted from today to remove the same.