M. MOHANversusTHE STATE GOVERNMENT OF TAMIL NADU & ORS.

                        [2022] 16 S.C.R. 139                              139


                            M. MOHAN                                      A
                                  v.
     THE STATE GOVERNMENT OF TAMIL NADU & ORS.
 (Petition(s) for Special Leave to Appeal (C) Nos. 12616-17 of 2022)
                       SEPTEMBER 02, 2022                                 B
         [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
       Land Acquisition – Tamil Nadu Highways Act, 2001 – ss. 15(1),
15(2) and 15(3) – Land of the petitioner-original land owner was
acquired under provisions of the Tamil Nadu Highways Act (‘Act’)
                                                                          C
– Notice issued u/s.15(2) of the Act inviting objections – Petitioner
submitted objections to proposed land acquisition – Thereafter,
notification issued u/s.15(1) of the Act – Petitioner filed writ before
the High Court contending, inter alia, that the notification u/s.15(1)
is in violation of the procedure to be followed u/r.5 of the Tamil
Nadu Highways Rules, 2003 – It was contended on behalf of the             D
petitioner that notification u/s.15(1) was issued without waiting for
any response from the Highways Departments/authorities to the
objections raised by the petitioner – High Court opined that there
was substantial compliance and there was no illegality committed
in issuing the notification u/s.15(1) of the Act – Special leave to
                                                                          E
appeal – Held: The object and purpose of r.5(2) is to hear the
Highways Department on the objections raised by the original land
owners – r.5(2) further provides that the Highways Department may
file a statement by way of answer to the objections – It is not a
mandatory requirement – Highways Department may or may not
file a statement by way of answer to the objections – Therefore,          F
non-filing of statement by way of answer to the objections by the
Highways Department and/ or non-furnishing the copy of the same
to the original land owners shall not vitiate the entire process of
acquisition process and/ or the notification issued u/s. 15(1) of the
Act – Therefore, High Court was right in observing that there was a
                                                                          G
substantial compliance of s.15 of the Act, 2001 r/w r.5 of the Rules,
2003 – No interference called for – Tamil Nadu Highways Rules,
2003 – r.5.


                                                                          H
                                 139
140            SUPREME COURT REPORTS                    [2022] 16 S.C.R.


A           Dismissing the SLPs, the Court
            HELD: 1. Section 15 of the Tamil Nadu Highways Act, 2001
      Act is a substantive provision which confers powers upon the
      authority to acquire the land. Sub-section (1) of Section 15
      provides for issuance of the notification to acquire land required
B     for the purpose of any highway or for construction of bridges,
      culverts, causeways, or other structures thereon or for any
      purpose incidental or ancillary thereto. Subsection (2) of Section
      15 provides that before publishing a notice under sub-section (l),
      the Government shall call upon the owner and any other person
      having interest in such land to show cause within such time as
C     may be specified in the notice, why the land should not be acquired.
      Rule 5 of the Rules, 2003 can be said to be a procedural provision
      and it provides for the manner of publication of public notice.
      Sub-rule (2) of Rule 5 provides that if any objection is received
      from a person interested in the land within the time prescribed
D     in the public notice issued under sub-section 2 of Section 15, the
      Government or the Collector or the Special Deputy Collector
      (Land Acquisition), shall fix a date for hearing the objections and
      give notice thereof to the objector as well as to the Highways
      Department. It further provides that copies of the objection shall
      also be forwarded to the Highways Department and the Highways
E     Department MAY file on or before the date fixed by the
      Government or the Collector, as the case may be, a statement by
      way of answer or response to the objections and may also depute
      a representative to attend the enquiry. The object and purpose
      of sub-rule (2) of Rule 5 seems to be to give an opportunity to
F     the Highways Department also to meet with the objections raised
      by the land owners and so as to give an opportunity to the
      Highways Department to put forward their case. It further
      provides that the Highways Department may file a statement by
      way of answer to the objections. It is not a mandatory requirement.
      Therefore, the Highways Department may or may not file a
G     statement by way of answer to the objections. There is no further
      provision to furnish a statement by way of answer by the Highways
      Department to the objections filed by the original land owners.
      Therefore, non-filing of a statement by way of answer to the
      objections by the Highways Department and/or non-furnishing
      the copy of the same to the original land owners shall not vitiate
H
      the entire process of acquisition process and/or the notification
M. MOHAN v. THE STATE GOVERNMENT OF TAMIL NADU                               141
                     & ORS.

issued under subsection (1) of Section 15 of the Act, 2001. [Para            A
5.1][148-A-C, D-H; 149-A]
      State of Mysore & Ors. v. V.K. Kangan & Ors. (1976) 2
      SCC 895 : [1976] 1 SCR 369 – referred to.
                        Case Law Reference
                                                                             B
[1976] 1 SCR 369                  referred to              Para 3.5
      EXTRA-ORDINARY APPELLATE JURISDICTION: Petition
For Special Leave To Appeal (C) Nos. 12616-17 of 2022.
      From the Judgment and Order dated 22.03.2022 of the High Court
of Judicature at Madras in W.A. Nos. 2169 and 2170 of 2021.                  C
      Huzefa A. Ahmadi, Sr. Adv., Senthil Jagadeesan, Arun Anbumani,
Aravindan, Ms. Remya Raj, Advs. for the Appellant.
      The Judgment of the Court was delivered by
      M. R. SHAH, J.                                                         D
      1. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 22.03.2022 passed by the High Court of
Judicature at Madras in Writ Appeal Nos. 2169 and 2170 of 2021, by
which, the Division Bench of the High Court has dismissed the said
appeals and has confirmed the judgment and order passed by the learned       E
Single Judge in respective writ petitions, the original writ petitioner –
original land owner has preferred the present Special Leave Petitions.
       2. That the lands in question owned by the petitioner herein –
original land owner were required to construct Grade Separators on
Periyar EVR Salai near Aminjakari, Nelson Manickam Road Junction             F
and Anna Nagar 3rd Avenue junction, for the purpose of constructing a
Flyover and Subway in the said location. The said lands were acquired
under the provisions of the Tamil Nadu Highways Act, 2001 (hereinafter
referred to as the Act, 2001). That a notice under Section 15(2) of the
Act, 2001 was issued inviting objections of owners and any other person
having interest in the lands to be acquired to show cause as to why the      G
lands may not be acquired. The petitioner herein – original land owner
submitted his detailed objections and the notices were also sent to the
highways authorities/department of the division concerned. According
to the State, after considering the objections raised by the original land
                                                                             H
142             SUPREME COURT REPORTS                            [2022] 16 S.C.R.


A     owner on the report submitted by the highways authorities, a notification
      under Section 15(1) of the Act, 2001 was issued. The original land owners
      being aggrieved with the notification issued under Section 15(1) of the
      Act, 2001 filed writ petitions before the High Court contending, inter-
      alia, that the notification under Section 15(1) of the Act, 2001 is in violation
      of the procedure to be followed under Rule 5 of the Tamil Nadu
B
      Highways Rules, 2003 (hereinafter referred to as the Rules, 2003). It
      was the case on behalf of the original writ petitioner that Rule 5 lays
      down the manner for publication of the public notice and the manner of
      conducting the enquiry. According to the original writ petitioner, before
      publishing a notice under Section 15(1), the Government or Collector or
C     Special Deputy Collector shall call upon the owner and any other person
      having interest in the land to show cause as to why the land may not be
      acquired. If objections are received from a person interested in the land,
      the Government or Collector or Special Deputy Collector shall fix a date
      for hearing the objections and give notice thereof to the objector as well
      as to the Highways Department. According to the original land owner,
D
      thereafter the Highways Department shall file, on or before the date
      fixed by the Government or Collector or Special Deputy Collector a
      statement by way of an answer or response to the objections and may
      also depute a representative to attend the enquiry and thereafter the
      Government or Collector or Special Deputy Collector shall hear the
E     objector and the Highways Department and record any evidence that
      may be produced by either party and on completion of the enquiry, the
      Collector shall submit all details of the enquiry to the Government to
      pass an order under sub-section (3) of Section 15. According to the
      original writ petitioner without waiting for the response from the Highways
      Department and without giving any opportunity of being heard to the
F
      objectors, the notification under Section 15(1) of the Act, 2001 has been
      issued, which is in clear violation of Rule 5 of Rules, 2003.
             2.1 On the other hand, it was the case on behalf of the State that
      the notifications under Section 15(1) of the Act, 2001 was issued after
      considering the report of the Collector on the objections submitted by
G     the original land owners and even the response from the Highways
      Department was received. That the learned Single Judge by a detailed
      judgment and order dismissed the writ petitions by observing that the
      notification under Section 15(1) of the Act, 2001 was followed by a
      detailed enquiry and after considering the objections raised by the original
H     land owners. The learned Single Judge opined that there was substantial
M. MOHAN v. THE STATE GOVERNMENT OF TAMIL NADU                                  143
              & ORS. [M. R. SHAH, J.]

compliance and there is no illegality committed in issuing the notification     A
under Section 15(1) of the Act, 2001.
      2.2 Feeling aggrieved and dissatisfied with the judgment and order
passed by the learned Single Judge dismissing the writ petitions, the
original writ petitioner filed writ appeal(s) before the High Court. By the
common impugned judgment and order, the Division Bench of the High              B
Court has dismissed the said appeal(s) which has given rise to the present
Special Leave Petitions.
      3. Shri Huzefa A. Ahmadi, learned Senior Advocate has appeared
on behalf of the petitioner – original land owner. It is vehemently submitted
by Shri Ahmadi that in the present case before issuing notification under       C
Section 15(1) of the Act, 2001, the procedure required to be followed
under Rule 5 of the Rules, 2003, which was required to be strictly
followed, have not been followed.
       3.1 Shri Ahmadi, learned Senior Advocate appearing on behalf of
the petitioner has submitted that before issuing a notification under Section   D
15(1), the following procedure as per Rules 5(2) and 5(3) shall have to
be strictly followed: -
      (i)   State’s delegated authority receives objections of the land
            owner - Rule 5(2);
      (ii) State’s delegated authority fixes a date for hearing the             E
           objections and gives notice thereof to the objector and the
           requisitioning authority - Rule 5(2);
      (iii) Copy of the land owner’s objections shall be forwarded to
            the requisitioning authority - Rule 5(2);
                                                                                F
      (iv) On the date fixed for enquiry, the State shall hear the objector
           and the representative of the requisitioning authority, if any
           and record evidence - Rule 5(3);
      (v) On or before the date fixed for hearing, the requisitioning
          authority may submit an answer statement to the objections
          - Rule 5(2)                                                           G

       It is submitted that in the present case, without waiting for any
response from the Highways Department/authorities to the objections
raised by the original land owner, notification under Section 15(1) of the
Act, 2001 has been issued.
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144             SUPREME COURT REPORTS                         [2022] 16 S.C.R.


A             3.2 It is further submitted that in the present case the acquisition
      of the petitioner’s land was sought to be done in two parts. While in the
      first part, the petitioner’s objections were submitted on 15.12.2010.
      However, the requisitioning authority’s (Highways Department) response
      thereto was sent only on 25.01.2011 – a month after the enquiry was
      superficially held on 24.12.2010. It is contended that the aforesaid is in
B
      clear violation of the procedure envisaged under the Rules. It is submitted
      that having forwarded the objections to the requisitioning authority seeking
      for its comments, the enquiry ought not to have been held prior to receipt
      of the comments. That even after receiving of the comments of the
      requisitioning authority, post the superficial enquiry, the same were not
C     provided to the petitioner and/or no fresh enquiry was conducted
      thereafter, prior to the issuance of notification under Section 15(1) of the
      Act, 2001. That if such comments were provided to the petitioner, he
      would have been in a better position to place before the State, inter-alia,
      that his objections were not properly considered and/or that the response
      of the requisitioning authority did not respond to his specific objections;
D
      the response was faulty, incorrect, etc. It is submitted that therefore, the
      petitioner was deprived of a meaningful enquiry under the Act and Rules,
      thereby causing grave prejudice to him.
             3.3 It is submitted that meanwhile, in case of the acquisition under
      the second part, the petitioner submitted his objections on 15.12.2011,
E     and the enquiry was superficially held on 15.12.2011 itself. It was an
      empty formality. Therefore, for the second part of the acquisition, the
      petitioner’s objections were never forwarded to the requisitioning
      authority, which is a mandatory requirement as per Rule 5(2). Further,
      there was no notice fixing a date for hearing of objections under Rule
F     5(2) and the hearing was held on the same day the objections were
      required to be submitted, which is also contrary to Rules.
            3.4 It is submitted that even otherwise a perusal of the responses
      given by the requisitioning authority shows identical and mechanical
      responses it gave in response to all objectors, thereby clearly showing
G     non-application of mind.
            3.5 It is further contended by Shri Ahmadi, learned Senior Advocate
      appearing on behalf of the petitioner that as such the Division Bench of
      the High Court has materially erred in not considering and/or in holding
      that Rules 5(2) and 5(3) are to be ignored as they are not in conformity
H     with Section 15(2) of the Act and therefore not enforceable. It is urged
M. MOHAN v. THE STATE GOVERNMENT OF TAMIL NADU                                145
              & ORS. [M. R. SHAH, J.]

that there was no occasion for the Division Bench of the High Court to        A
hold so, more particularly, when these Rules were duly framed and placed
before the Legislative Assembly and issued, and have stood the test of
time. It is submitted that their vires have never been questioned and the
State has been following the Rules without demur. That the High Court
ought to have appreciated that the procedure set down by these Rules
                                                                              B
are a safeguard against arbitrariness, and protect the expectation of fair
adjudication. Reliance is placed on the decision of this Court in the case
of State of Mysore & Ors. Vs. V.K. Kangan & Ors.; (1976) 2
SCC 895 wherein it is held by this Court that there is no conflict between
Rule 3(b) of the Tamil Nadu Land Acquisition Rules and Section 5A(2)
of the Land Acquisition Act, 1894. It is submitted that the said Rule 3(b)    C
is similar to the present Rule 5(2).
      3.6 Making the above submissions it is prayed to set aside the
impugned judgment(s) and order(s) passed by the High Court and
consequently to set aside the acquisition.
      4. Heard Shri Huzefa A. Ahmadi, learned Senior Advocate,                D
appearing on behalf of the petitioner.
       4.1 That the petitioner herein – original writ petitioner before the
High Court challenged the acquisition of lands in question which were
acquired under the provisions of the Tamil Nadu Highways Act, 2001.
The acquisition was challenged, inter-alia, on the ground that the            E
procedure required under Rule 5 of Rules, 2003 has not been followed
and while considering the objections raised by the petitioner – land owner
the opinion of the highways authorities of the division concerned was
not considered and also on the ground that before issuing notification
under Section 15(1) of the Act, 2001, the objections of the land owner        F
were not properly considered. That the learned Single Judge dismissed
the writ petitions observing that there was a substantial compliance of
the procedure as required to be followed under Rule 5 of Rules, 2003
inasmuch as the objections raised by the petitioner – original land owner,
were specifically dealt with and considered before issuing the notification
under Section 15(1) of the Act, 2001. However, while affirming the            G
judgment and order passed by the learned Single Judge, the Division
Bench of the High Court has further observed that Rule 5(2) to Rule
5(3) is not in consonance with Section 15(2) and therefore, it is to be
ignored.
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146                SUPREME COURT REPORTS                      [2022] 16 S.C.R.


A            5. While appreciating the submissions made by Shri Ahmadi,
      learned Senior Advocate, appearing on behalf of the petitioner, Section
      15 of the Act, 2001 and Rule 5 of Rules, 2003 are required to be referred
      to and considered, which are as under: -
            “TAMILNADU HIGHWAYS ACT, 2001
B           Section 15. Power to acquire land:
            (1) If the Government are satisfied that any land is required for
            the purpose of any highway or for construction of bridges, culverts,
            causeways or other structures thereon or for any purpose incidental
            or ancillary thereto, in furtherance of the objects of this Act, they
C           may acquire such land by publishing in the Tamil Nadu Government
            Gazette a notice specifying the description of such land and the
            particular purpose for which such land is required.
            (2) Before publishing a notice under Sub-section (l), the Government
            shall call upon the owner and any other person having interest in
D           such land to show cause within such time as may be specified in
            the notice, why the land should not be acquired. The Government
            shall also cause a public notice to be given in such manner as may
            be prescribed.
            (3) The Government may, after considering the cause, if any, shown
E           by the owner or other person having interest on such land, pass
            such an order under sub-section (1), as they may deem fit.”
            “TAMIL NADU HIGHWAYS RULES, 2003
            5. Manner of publication of the public notice. - Before
            publishing a notice under sub-section (1) of section 15, the
F
            Government or the Collector or the Special Deputy Collector (Land
            Acquisition), Tamil Nadu Urban Development Project III, as the
            case may be shall in addition to calling upon the owner and any
            other person having interest in the land to show cause as to why
            the land should not be acquired, shall also cause a public notice to
G           that effect to be published in one English and in one Tamil
            newspapers having circulation in the locality. The said notice shall
            also be displayed in the offices of the,-
            (i)      Highways Authority of the division concerned;
            (ii)     Village Administrative Officer of the village concerned; and
H
M. MOHAN v. THE STATE GOVERNMENT OF TAMIL NADU                                    147
              & ORS. [M. R. SHAH, J.]

      (iii)   Tahsildar of the taluk concerned.                                   A
      (2) If any objection is received from a person interested in the
      land within the time prescribed in the public notice issued under
      sub-section 2 of section 15, the Government or the Collector or
      the Special Deputy Collector (Land Acquisition), Tamil Nadu Urban
      Development Project III, as the case may be, shall fix a date for           B
      hearing the objections and give notice thereof to the objector as
      well as to the Highways Department. Copies of the objection
      shall also be forwarded to the Highways Department. The
      Highways Department may file on or before the date fixed by the
      Government or the Collector as the case may be, a statement by
      way of answer to the objections and may also depute a                       C
      representative to attend the enquiry;
      (3) On the date fixed for enquiry or any other date to which the
      enquiry may be adjourned, the Government or the Collector or
      the Special Deputy Collector (Land Acquisition), Tamil Nadu Urban
      Development Project III, as the case may be, shall hear the                 D
      objector or a person authorised by him in this behalf and the
      representatives, if any, of the Highways Department and record
      any evidence that may be produced in support of the objection
      and in support of the need for acquiring the land;
      (4) Where the enquiry is conducted by the Collector, on completion          E
      of the enquiry, the Collector shall submit all the details of the enquiry
      to the Government to pass order under sub-section (3) of section
      15;
      (5) Where the enquiry is conducted by the Government, the
      Government will pass order under sub-section (3) of section 15;”            F
       5.1 In the present case public notice under Section 15(2) of the
Act, 2001 was issued on 30.11.2010 and paper publication under Section
15(2) notice was issued on 03.12.2010. That the petitioner submitted his
objections on 15.12.2010; enquiry was conducted on 24.12.2010;
objections were sent to the Highways Department and the remarks were              G
called for on 20.12.2010. The Highways Department forwarded its reply/
statement may be after conduct of the enquiry on 24.12.2010 but before
the notification under Section 15(1) of the Act, 2001 was issued. It is the
case on behalf of the petitioner that at the time when the enquiry was
conducted response from the Highways Department was not before the
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148             SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A     authority and no opportunity was given to the petitioner to put forward
      his case on the answers to the objections tendered by the Highways
      Department. However, it is to be noted that Section 15 is a substantive
      provision which confers powers upon the authority to acquire the land.
      Sub-section (1) of Section 15 provides for issuance of the notification to
      acquire land required for the purpose of any highway or for construction
B
      of bridges, culverts, causeways, or other structures thereon or for any
      purpose incidental or ancillary thereto. Sub-section (2) of Section 15
      provides that before publishing a notice under sub-section (l), the
      Government shall call upon the owner and any other person having interest
      in such land to show cause within such time as may be specified in the
C     notice, why the land should not be acquired. Sub-section (3) of Section
      15 provides that the Government may, after considering the cause
      [objections raised pursuant to the notice under sub-section (2) of Section
      15], pass such order under sub-section (1). Rule 5 of the Rules, 2003
      can be said to be a procedural provision and it provides for the manner
      of publication of public notice. Sub-rule (2) of Rule 5 provides that if any
D
      objection is received from a person interested in the land within the time
      prescribed in the public notice issued under sub-section 2 of Section 15,
      the Government or the Collector or the Special Deputy Collector (Land
      Acquisition), shall fix a date for hearing the objections and give notice
      thereof to the objector as well as to the Highways Department. It further
E     provides that copies of the objection shall also be forwarded to the
      Highways Department and the Highways Department MAY file on or
      before the date fixed by the Government or the Collector, as the case
      may be, a statement by way of answer or response to the objections and
      may also depute a representative to attend the enquiry. The object and
      purpose of sub-rule (2) of Rule 5 seems to be to give an opportunity to
F
      the Highways Department also to meet with the objections raised by the
      land owners and so as to give an opportunity to the Highways Department
      to put forward their case. It further provides that the Highways
      Department may file a statement by way of answer to the objections. It
      is not a mandatory requirement. Therefore, the Highways Department
G     may or may not file a statement by way of answer to the objections.
      There is no further provision to furnish a statement by way of answer to
      the objections filed by the Highways Department to the original land
      owners. The object and purpose of said sub-rule (2) of Rule 5 as observed
      hereinabove is to hear the Highways Department on the objections raised
      by the original land owners. Therefore, non-filing of a statement by way
H
M. MOHAN v. THE STATE GOVERNMENT OF TAMIL NADU                                149
              & ORS. [M. R. SHAH, J.]

of answer to the objections by the Highways Department and/or non-            A
furnishing the copy of the same to the original land owners shall not
vitiate the entire process of acquisition process and/or the notification
issued under sub-section (1) of Section 15 of the Act, 2001. It can be
said that the said provision is for the benefit of the Highways Department
so that no adverse decision is taken by the State Government without
                                                                              B
giving an opportunity to the Highways Department.
      6. In the present case, before issuance of notification under Section
15(1) of the Act, 2001, fullest opportunity has been given to the original
land owner to submit his objections. Thereafter, the enquiry has been
conducted as required under sub-section (2) of Section 15 and after
considering the objections and having been satisfied that the land is         C
required for the purpose of Highways Department, the notification under
Section 15(1) of the Act, 2001 has been issued. It is to be noted that
before issuing the notification under Section 15(1) of the Act, 2001, a
statement by way of answer to the objections by the Highways
Department was before the authority and thereafter the notification under     D
Section 15(1) of the Act, 2001 has been issued. Therefore, the learned
Single Judge and the Division Bench of the High Court was right in
observing that there is a substantial compliance of Section 15 of the Act,
2001 read with Rule 5 of the Rules, 2003 and no interference of the
Court is called for.
                                                                              E
       7. However, at the same time Shri Ahmadi, learned Senior
Advocate, appearing on behalf of the petitioner, is right in making
submission that as the validity of Rule 5 was not before the High Court
therefore, the High Court ought not to have held Rule 5 to be ultra
vires. However, from the impugned judgment and order of the Division
Bench of the High Court, it appears that the Division Bench of the High       F
Court was of the opinion that Rule 5 being a subordinate legislation is
inconsistent with the provision of Section 15(2) of the Act, and therefore,
the same is to be ignored. It is true that the same was not warranted and
we are of the opinion that Rule 5 cannot be said to be inconsistent with
Section 15(2) of the Act. However, on merits and for the reasons stated       G
above, we are in complete agreement with the ultimate view taken by
the learned Single Judge confirmed by the Division Bench of the High
Court upholding the acquisition in question. Hence, we do not propose to
further enter into the observations made by the Division Bench that the
provision of Rule 5 of the Rules, 2003 is inconsistent with Section 15(2)
of the Act, 2001.                                                             H
150              SUPREME COURT REPORTS                      [2022] 16 S.C.R.


A           8. In view of the above and for the reasons stated above, there is
      no substance in the present Special Leave Petitions and therefore, the
      same deserve to be dismissed and are accordingly dismissed.

      Bibhuti Bhushan Bose                                       SLPs dismissed.
      (Assisted by : Preetam Bharti, LCRA)
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