R KUMAR Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) 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 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 subsequently changing into 12. 5 and 13. 8 meters, seriously affecting the petitioners new building structure and also vital columns of it. THE initial marking of 7. 2 to 7. 5 meters in the entire width of the petitioners property would not have caused any damage to the petitioners structure since it was made strictly in accordance with the sanctioned plan, but the subsequent marking of increasing the highways boundary to 12. 5 meters to 13. 8 meters, without notifying the petitioners under Section 8 of the Tamil Nadu Highways act, 2001, knowing well the completed structure and development of the petitioners warrants demolition, is a case of non-compliance of mandatory provisions, besides arbitrary exercise of power coupled with malice in Law. THE paper publication regarding the proposed acquisition was made in the Tamil daily on 10. 12. 2004 under Section 15 (2) of the Tamil Nadu Highways Act, thereafter, notice calling for objections dated 06. 12. 2004 was served on 18. 12. 2004 only on the land owners leaving other interested persons. THE petitioners sent their detailed reply on 20. 12. 2004 to the Acquisition Officer objecting to the widening of the road by more than 23 feet on their property, but the enquiry was not conducted in accordance with Law and Rules. THE objections of the petitioners were not placed before the second respondent as required under Rule 5, (2) and (3) of the Tamil Nadu Highways Rules. THE acquiring authority rejected the objections of the petitioners without furnishing the copies of the objections and written reply given by the Highways authority to the petitioners. THE required procedure for changing the road alignment and width contemplated under Section 8 of the Tamil Nadu Highways Act is not followed, hence, the petitioners were not able to know whether their building is likely to be affected or not. THE petitioners are also entitled for exemption as contemplated under Section 10 of the Tamilnadu Highways Act. THE planning permission was granted by the second respondent under the provisions of Tamil nadu Town and Country Planning Act, which overrides other Acts, was not honoured, the finality of planning permission granted by the second respondent was overlooked and the selective discrimination against the acquisition in front of the petitioners land to accommodate other developers property by adopting the theorey of optimisation. If the shifted alignment by the first respondent is given effect to, it will not only bring down the entire front facade of the building, but will also cause extensive damage to the entire structure of about 13000 square feet constructed at a cost of Rs. 1 crore exclusively for the purpose of I. T. Office space will be ruined. THEre is no public purpose served in demolishing the building that was made with proper sanction by specifically providing 23 feet for the purpose of road widening. Some of the residents of Kottivakkam Village challenged the acquisition without compensation was decided by this Court on 28. 02. 2005 whereas the claim of the petitioners is totally different and not restricted to the issue of compensation alone. THE petitioners has no objection to surrender that part of the land (23 feet from the existing western boundary of their property) as per the sanctioned plan and street alignment stipulated by the second respondent, which are required for the proposed road expansion project and their objection is restricted to demolition and acquisition of the superstructure and the front set back beyond the street alignment in accordance with the sanctioned plan. Mr. Vijayan further argued that the first respondent, in exercise of power conferred by Section 3 of Tamilnadu Highways Act, issued G. O. Ms. No. 210, highways (HN2) dated 06. 10. 2003 declaring the Chennai-Mahabalipuram road as highways, on that day, the width of the said road was admittedly 54 feet only in front of the Petitioners land but there was no declaration declaring 136 feet (41 meters ). 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. 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. Admittedly, the highways authority not made any notification under Section 8 of the Tamilnadu Highways Act. Mr. Vijayan even though not disputed the power of eminent domain but only questioned the exercise of such power in favour of one person by optimisation; that the eminent domain power does not mean that can override all other statutory provisions like Tamilnadu Town and Country planning Act, under which, the plan was issued to the petitioners by the second respondent; that the basic principles of statutory provision is to harmonise both the Acts and not to undermine one Act to the other, particularly when both the Acts contained non-obstante clause; that by making a small change in the plant strip on both sides of the path way and a marginal extent in the path way more than four feet can be accommodated without any difficulty and without changing the highway line in that event the petitioners building to the extent of 3 to 4 feet without demolition which is costing about Rs. 2 crores and odd can be avoided; that the petitioners have gone to the extent of offering without prejudice to their legal rights to give the entire stretch of land measuing 100 X 38 feet (3800 sq. ft. ,) costing presently more than Rs. 80 lakhs free to the Government without any claim of compensation, however, prayed for declaration sought for.