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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE A. KULASEKARAN
R. Kumar - Appellant
Versus
State of Tamil Nadu & Others - Respondents
W.P. Nos. 18050 & 18051 of 2005
Decided On : 09 August 2006
HIGHWAYS - ACQUISITION OF LAND - NOTIFICATION - BOUNDARY LINE - BUILDING LINE - CONTROL LINE - FIXATION - POWER OF HIGHWAYS AUTHORITY - RESTRICTION ON BUILDING - EXEMPTION - SETTING BACK OF BUILDING BEYOND BUILDING LINE - PREPARATION OF MAPS - POWER TO ACQUIRE LAND - ACT TO OVERRIDE CONTRACT AND OTHER LAWS ETC. - MANNER OF PUBLICATION OF THE PUBLIC NOTICE - OBJECTIONS - ENQUIRY - Tamil Nadu Highways Act, 2001 (2 of 2001) - Sections 3, 8, 9, 10, 11, 13, 15, 69 - Tamil Nadu Highways Rules, 2003 - Rule 5.
Fact of the Case:
The petitioners, owners of undivided share in the lands comprised in Survey No.227/5 (part) to an extent of 13000 square feet and holding 50% in the super-structure thereon, entered into a joint promotion agreement dated 23.10.2001 with Naveen Housing and Properties Private Limited for construction of the building and obtained sanctioned plan from the second respondent on 27.05.2003 under the provisions of Tamil Nadu Town and Country Planning Act, 1971. The petitioners seek for a Writ of Declaration to declare that the notification issued by the first respondent in G.O. Ms. No. 92, Highways (HW1) 25.04.2005 published in the Government Gazzette No.II (2)/HW/(340-e-2)/ 2005 under Section 15 (1) of the Tamil Nadu Highways Act, 2001 in so far as it relates to acquisition of property of the petitioners are concerned etc., is illegal, arbitrary, discriminatory and colourable exercise of power.
Finding of the Court:
1. The power of acquisition under Section 15 of the Tamilnadu Highways Act is only in respect of highways declared under Section 3 of the Act, the enlarged boundary not declared under Section 3 of Tamilnadu Highways Act, the power of acquisition cannot be extended; that any acquisition without preceded by a notice under Section 8 of the said Act over and above the existing width is not sustainable. 2. When optimisation as a measure of exercise of quasi-judicial jurisdiction is exercised in changing the boundary line in favour of one set of people, the same should be equally applicable to the petitioners as well, but the respondents discriminated the petitioners. 3. The master plan is not a permanent one which can be reviewed by the Government. 4. Acquisition will be valid if it is for public purpose, even if it is not for the 'type of user permitted by the master plan' in force at the time of acquisition is made. 5. It will be for the beneficiary of the acquisition to move the competent authority under the development Act and obtain the sanction of the said authority for suitable modification of the master plan so as to permit the use of land for the public purpose for which acquired. 6. On the principle stated in 'Aflatoon case – 1974 (4) SCC 285', it is clear that acquisition for public purpose and obtaining permission from the competent authority under the development Act concerned for change of land use are different from one another and the former is not dependent upon the 'latter'. 7. The non-obstante clause found in both Acts were not overrideen by the respondents as alleged by the petitioner.
Issues: 1. Whether the power of acquisition under Section 15 of the Tamilnadu Highways Act is only in respect of highways declared under Section 3 of the Act? 2. Whether the master plan is a permanent one which can be reviewed by the Government? 3. Whether acquisition will be valid if it is for public purpose, even if it is not for the 'type of user permitted by the master plan' in force at the time of acquisition is made? 4. Whether the non-obstante clause found in both Acts were overrideen by the respondents as alleged by the petitioner?
Ratio Decidendi: 1. The power of acquisition under Section 15 of the Tamilnadu Highways Act is only in respect of highways declared under Section 3 of the Act, the enlarged boundary not declared under Section 3 of Tamilnadu Highways Act, the power of acquisition cannot be extended; that any acquisition without preceded by a notice under Section 8 of the said Act over and above the existing width is not sustainable. 2. The master plan is not a permanent one which can be reviewed by the Government. 3. Acquisition will be valid if it is for public purpose, even if it is not for the 'type of user permitted by the master plan' in force at the time of acquisition is made. 4. The non-obstante clause found in both Acts were not overrideen by the respondents as alleged by the petitioner.
Final Decision: The writ petitions are dismissed as devoid of merits.
(WP No. 18050 and 18051 of 2005: Petitions filed under Article 226 of The Constitution of India praying for a Writ of Declaration declaring that the notification issued by the first defendant in G.O. Ms. No. 92, Highways (HW1) 25.04.2005, published in Gazzette No.II (2)/HW/(340-e-2)/ 2005 under Section 15 (1) of the Tamil Nadu Highways Act, 2001 in so far as it relates to acquisition of the property of the petitioner situated at Government Manavari Survey No.277-5 (part) now sub-divided as 277-5B, No.44, Kottivakkam Village, Tambaram Taluk, Kancheepuram District, beyond 23 feet from the existing Western boundary of the petitioner's land as per the sanctioned plan and master plan of the second respondent, is illegal, arbitrary, discriminatory and colourable exercise of power, and inconsistent with the petitioner's lawful right acquired and become final under the provisions of the Tamilnadu Town and Country Planning Act, 1971 as per the permission issued by the 2nd respondent.)
Common Order:
The Petitioner in WP No. 18050 of 2005 is the owner of undivided share in the lands comprised in Survey No.227/5 (part) to an extent of 13000 square feet and holding 50% in the super-structure thereon.
2. The petitioners 2, 3 and 4 in WP No. 18051 of 2005 are represented by the first petitioner and are also co-owners of the said lands comprised in Survey No.227/5 (part).
3. The petitioners in both the writ petitions entered into a joint promotion agreement dated 23.10.2001 with Naveen Housing and Properties Private Limited for construction of the building and obtained sanctioned plan from the second respondent on 27.05.2003 under the provisions of Tamil Nadu Town and Country Planning Act, 1971.
4. The petitioners in both the writ petitions seek for a Writ of Declaration to declare that the notification issued by the first respondent in G.O. Ms. No. 92, Highways (HW1) 25.04.2005 published in the Government Gazzette No.II (2)/HW/(340-e-2)/ 2005 under Section 15 (1) of the Tamil Nadu Highways Act, 2001 in so far as it relates to acquisition of property of the petitioners are concerned etc., is illegal, arbitrary, discriminatory and colourable exercise of power.
5. The learned Senior counsel Mr. K.M. Vijayan appearing for the petitioners in both the writ petitions submits as follows:-
The building plan of the petitioners issued by the planning authority/second respondent is in confirmity with the master plan which proposed widening of I.T. Corridor in the Old Mahabalipuram Road and accordingly the petitioners provided 23 feet required for road expansion in front of the site (which is 50% from the middle of the road) as suggested by the authorities and also further left 15 feet for set back, in all 38 feet. The developer also completed the entire development in accordance with the sanctioned plan and individual undivided property shares were transferred to the flat owners which are under the mortgage of financial institutions. The first respondent took discriminatory stand thereby varied the boundary lines of the proposed highways expansion with an intention to save the other development by Vijay Shanthi Builders on the Western side of the highways by shifting and bending the alignment to the East with a malafide intention. As per Section 58 of the Town and Country Planning Act, either State Government or Central Government or Local Authority who are contemplating any development to obtain clearance from the second respondent, which possess power to raise objections and require modification of such schemes in tune with master plan, but no such clearance under Section 58 of the Town and Country Planning Act was obtained for the proposed I.T. Corridor Express way by the first respondent. The shifting standards of the first respondent in varying the road alignment is reflected by the markings made by it on two occasions, one initially providing widening by 7.2 meters and 7.5 meters on the North and South of the Petitioners property and other su
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