R KUMAR Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE appellant in W.A.No.1070 of 2006 had filed W.P.No.18050 of 2005, challenging the order of the first respondent in G.O. Ms. No.92, Highways (HW 1), dated 25.4.2005, published in Gazette No. II(2)/HW/(340e-2)/2005 under Section 15(1) of the Tamil Nadu Highways Act, 2001 in so far as it relates to ac�quisition of the property of the petitioner situate at Government Manavari Survey No.277-5 (Part) now sub-divided as 277-5B, No.44, Kottiwakkam Village, Tambaram Taluk, Kancheepuram District, beyond 23 feet from the existing western boundary of the peti�tioner's land as per the sanctioned plan and Master Plan of the second respondent. THE other five land owners, viz., the appellants in W.A. No.1071 of 2006 have filed writ petition in W.P. No.18051 of 2005 for similar relief. This, according to the appellants/petitioners, is that the acquisition made in respect of the land in question, and was inconsistent with the petitioners' lawful right, which had become fi�nal under the provisions of the Tamil Nadu Town and Country Planning Act, 1971 (for short, �TNTCP Act') as per the planning permission issued by the second respondent.

(2.) IT is seen from the records that the Dis�trict Collector, by the powers vested on him by the Government, by G.O. Ms. No.206, Highways (HN2) Department, dated 29.9.2003, issued a Notification under Section 15(2) of the Tamil Nadu Highways Act, stating that the land found in Survey No.277/5 to the extent of 383 Square Metres is required for the purpose of development of the Old Mahabalipuram Road (for short, 'OMR Road') into six way Traffic lane, which is rechristened as I.T.Cor�ridor. Against the said Notice, the appellants/petitioners in both the writ petitions filed an objection dated 20.12.2004. Their serious objections found in paragraphs 14 to 18 are ex�tracted below:". 14. As per the Notification published on 10.12.2004, the acquisition in our land in S. No.277/5 is to the extent of 383 sq.m. which implies that a strip of 13.78 M average width is proposed to be acquired from our land, meaning a width of 22.13 M from the centerline for the NOW proposed 41 M wide Highway (the width has arbitrarily been increased progressively from 30.5 M to 35.5 M to 38 M to 41M). This means, on the opposite side of existing centerline, the acquisition will be only to the distance of 18.87 M. This shows more land is proposed to be acquired on the eastern side than on the western side, damaging a legally constructed recently approved building in preference to the opposite side which smacks of mala fide intentions. 15. The constant varying of Highway boundary and road width was also not fol�lowed by a required Notification under Sec�tion 8 of the Act, taking into consideration the volume of the traffic in the road and other relevant factors required to change the width of the road three times within a period of six months'. 16. We also bring to Notice, when the Highways Act provides for even permission of' encroachment under Section 26, we do not know how it is justifiable on the part of the Highways Authority to unilaterally change the Highway boundary and acquire more land than the one provided for the Highways acquisition as per the sanctioned plan dated 27.5.2003. 17. We, therefore, state in the light of giving respect to another Statutory Authority namely CMDA and the law regulating development, it is just and fair that the acquisi�tion can be made only to the extent of 23 feet from our land as per the sanctioned plan in conformity of which our development was made. 18. Any additional acquisition other than the one provided for on the date of the sanctioned plan (27.5.2003) will he a clear case of violation of rule of law and principles of harmonious construction of statutes."They have also requested the Government to drop the plan to acquire the land.

(3.) BEFORE the learned Judge, an argument was advanced that the road alignment was sought to be altered with a view to favour a building on the opposite side, owned by one Vijay Shanthi Builders and though care was taken for doing optimisation in favour of the Vijay Shanthi Builders, the similar care was not extended to the writ petitioners and hence, it amounted to hostile discrimination. The learned Judge specifically recorded a finding that Vijay Shanthi Builders themselves have tiled separate writ petitions before this Court, questioning the acquisition of their lands, and the same were dismissed on 23.2.2006 and when the matter was taken on appeal, the Divi�sion Bench of this Court also dismissed the writ appeals by judgment dated 30.6.2006. This argument was rightly given up before us.