Dr. Mrs. Chellarani David Grace Hospital vs State of Tamil Nadu and Others

M.M. Sundresh, J.—These two Writ Petitions have been filed by the Petitioner, challenging the declaration issued by the first Respondent in

G.O. Ms. No. 15, Housing and Urban Development Department dated 17.01.2001 and the consequential award enquiry notice dated

30.11.2001 for the lands situated in Survey No. 167/2A part, Nemilicheri Village, Thiruvallur District which have been acquired for the purpose of

formulation of the Outer Ring Road.

Facts in brief:

The second Respondent, Chennai Metropolitan Development Authority has been constituted u/s 9-C, Chapter II-A of the Tamil Nadu Town

and Country Planning (Amendment) Act, 1973. Considering the enormous growth and development of Chennai Corporation, an ambitious

programme has been envisaged by the Chennai Metropolitan Development Authority by way of a comprehensive traffic and transportation study.

The said exercise has been made keeping in view of the explosion in urban population, ever growing migration to the city of Chennai as well as the

consequent increase in economic activities.

Therefore, it was proposed by the second Respondent, Chennai Metropolitan Development Authority to have a Mass Rapid Transit System,

Electrified Suburban Train System, construction of Combined Railway Terminal, Inner Circular Corridor Railway, along with the construction of

Inner and Outer Ring Roads. A proposal was mooted for the creation of Outer Ring Road to a length of 62.30km, width of 122m (400'') wide

providing for 3 lane dual carriage way with service lanes on both sides. Lands have been acquired for the above said public purpose in II phases.

The Government of Tamil Nadu has also approved the proposal for the acquisition of lands. Accordingly, the proposal of the second Respondent,

Chennai Metropolitan Development Authority has been approved by the first Respondent in G.O. Ms. No. 381, Housing and Urban Development

Department, dated 25.05.1993 and approving the proposal for the formation of Outer Ring Road, a notification was issued u/s 4(1) of the Land

Acquisition Act, 1894 (hereinafter referred to as ''the Act'').

In pursuant to the said approval granted by the first Respondent, a notification was issued in G.O. Ms. No. 523, Housing and Urban

Development Department, dated 08.12.1999 proposing to acquire lands. In pursuant to the said notification, a publication was effected in the

Government Gazette on 05.01.2000. It was published in the local dailies having wide circulation on 22.01.2000 and locality publication was made

on 25.01.2000. The 5(A) enquiry was conducted on 10.03.2000, 13.03.2000 and 14.03.2000. After considering the objections, an order was

passed by the fifth Respondent on 21.06.2000. A declaration was passed by the first Respondent in G.O. Ms. No. 15, Housing and Urban

Development Department dated 17.01.2001.

Notices u/s 9(3) and 10 of the Act were sent on 30.11.2001.

In pursuant to the said notice, award enquiries were conducted u/s 11 of the Act on 26.12.2001, 27.12.2001 and 28.12.2001. Thereafter, an

award was passed in Award No. 1 of 2002 dated 31.01.2002. The notice u/s 12(2) of the Act was issued on 09.04.2002. The Writ Petitions

have been filed by the Petitioner challenging the declaration u/s 6 of the Act as well as the award enquiry notice on 18.03.2002.

The Petitioner herein is a qualified Medical Practitioner. She has put up construction in Survey No. 167/2A by establishing a Hospital in the

name of M/s. Grace Hospital. The Petitioner has also put up a Pharmacy and residential house in the said place. The Hospital has been functioning

from the year 1985 onwards. It is situated at the junction/intersection of the Chennai # Thiruvallur High Road and the Outer Ring Road. The

Hospital is having a Trauma care performing numerous Orthopeadic surgeries. Apart from that, it has also an automatic anesthetic ventilator. It has

got facilities like emergency care services. It is a 21 bedded Hospital, which is stated to perform 1000 deliveries every year. Apart from the same,

it has an approved Family Welfare Centre of the State of Tamil Nadu, a recognized Unit for integrated disease Surveillance, an approved Unit by

the Tamil Nadu State Aids Control Society and an empanelled Service Provider Network Hospital (Insurance). It is also stated to have the

support of the Specialist in the field of Cardiology, General Surgery, Plastic Surgery, Oncology Surgery, Orthopaedic, Obstetrics & Gynaecology.

According to the Petitioner, there is no other Hospital nearby within a radius of 10 kilometres with the above said facilities and the Government

District Hospital is at 17kms away.

An extent of 0.10.0 hectares of land in Survey No. 167/2A2 corresponding to 1435.1 square metres of the land, in which the Petitioner''s

Hospital, Pharmacy and residential house are situated, have been sought to be acquired by the Respondents by issuance of the notification u/s 4(1)

of the Act. The Petitioner appeared for the 5-A enquiry.

The Petitioner was called for further enquiry by the notice dated 08.05.2000. The Petitioner gave objections by the letter dated 27.05.2000

stating that her objections have not been considered. She has also enclosed her earlier objections vide her letter dated 03.03.2000. The

Petitioner''s objections have been rejected on 21.06.2000. She gave further objections stating that her earlier objections have not been considered

and the objections said to have been made have not been raised by her.

However, a declaration was passed in G.O. Ms. No. 15, Housing and Urban Development Department, dated 17.01.2001. Thereafter, in

pursuant to the notice issued u/s 9(3) and 10 of the Act, an award was passed in Award No. 1 of 2002. Thereafter, the Petitioner has filed the

present Writ Petitions, one challenging the declaration issued u/s 6 of the Act and the other challenging the award enquiry notice.

Submissions of the Petitioner:

Shri.C. Franco Louis, learned Counsel appearing for the Petitioner filed voluminous documents to show that the Petitioner''s Hospital has been

catering to the needs of the local public. It was placed on record along with the communication of the second Respondent that there is no other

Hospital in the nearby area. Therefore, it is submitted that when there is a public purpose, it cannot be substituted by another one, by acquiring the

lands. The order passed by the Respondents in exercise of the power u/s 3(f) of the Act has to be set aside, since the procedures contemplated

therein and the principles enunciated by the Honourable Apex Court, have not been followed. The first Respondent has not considered the

materials available on record before granting the prior approval The enquiry conducted u/s 5-A of the Act has been conducted in a perfunctory

manner, without even understanding the objections of the Petitioner.

Considering the valuable rights involved, a duty is enjoined upon the 5th Respondent to consider the objections objectively by applying his

mind instead of rejecting the same on irrelevant grounds. At the time of acquisition, places have been earmarked on both sides of the proposed

road for commercial purposes. The plan originally proposed, has been changed subsequently and as a result, the property of the Petitioner has

been cut into two. Accordingly, the Hospital, Pharmacy and the residential house can never be saved by considering any exemption and the

remaining property will be of no use without any access. The second Respondent has placed on record earlier that the Petitioner''s request can be

considered at a later point of time for exempting her property. It is not clear as to whether the original plan has been changed. The subsequent

communication sent by the Chief Planning Officer supports the case of the Petitioner.

12.A perusal of the Revised Feasibility Report clearly indicates that Option No. 1 is better one than Option No. 2. If the Respondents are

proceeding with Option No. 1, then the Petitioner''s land can be exempted, as it comes within the commercial place earmarked. On the other

hand, if the Option No. 2 is adopted, then in the event of this Court not willing to quash the proceedings, considering the public interest involved,

an alternative place can be earmarked for the Petitioner The Court is not powerless in directing the Respondents to give an alternative site and in

appropriate cases, the Courts can exercise their discretion by issuing suitable directions. The Petitioner cannot be non-suited merely on the ground

of award having been passed, since the Writ Petitions have been filed on 18.03.2002 and the 12(2) notices have been received on 09.04.2002.

The Petitioner has been agitating her rights with the second Respondent right from the initiation of the 5-A proceedings to till date.

In support of the said contentions, the learned Counsel has made reliance upon the following judgments:

Munshi Singh and Others Vs. Union of India (UOI),

Shri Mandir Sita Ramji Vs. Lt. Governor of Delhi and Others,

Shyam Nandan Prasad and Others Vs. State of Bihar and Others,

TAMIL NADU REAL ESTATES LTD. and Ors. v. THE SPECIAL TAHSILDAR, LAND ACQUISITION, ETC. and Ors. [2002 1 L.W. 37

S.N.]

Union of India (UOI) and Others Vs. Mukesh Hans etc.,

Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai and Others,

VIJAYA v. STATE OF TAMIL NADU [2009 (3) CTC 545]

Commissioner of Police, Bombay Vs. Gordhandas Bhanji,

Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others,

Bhikhubhai Vithlabhai Patel and Others Vs. State of Gujarat and Another,

Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer and Another,

T. Ramaraj Vs. State of Tamil Nadu and another,

R. Thiruvengadam Vs. The Secretary to Government, Housing Department, Government of Tamil Nadu and Others,

JAGDISH CHAND And Anr. v. STATE OF HARYANA AND ANOTHER [ (2005) 10 SCC 162]

P.VIJAYARAGHAVAN v. THE GOVERNMENT OF TAMIL NADU [W.P. No. 10918 OF 2008 ETC. BATCH DATED 28.01.2010]

Hansraj H. Jain Vs. State of Maharashtra and Others,

Pt. Parmanand Katara Vs. Union of India (UOI) and Others,

Paschim Banga Khet Mazdoor Samity and others Vs. State of West Bengal and another,

Collectors of 24 Parganas and Others Vs. Lalit Mohan Mullick and Others,

Accordingly, the learned Counsel submitted that the Writ Petitions will have to be allowed.

Submissions of the Respondents:

Per contra, the learned Additional Advocate General submitted that the Courts will have to see the overwhelming public interest involved, as

against limited public interest. The Petitioner has not challenged the award and has approached this Court after the passing of the award. Hence, it

is not open to her to challenge the proceedings till the passing of the declaration u/s 6 of the Act. Except the Petitioner and three other persons,

who have filed Writ Petitions, which are heard along with the present Writ Petitions, possession has been taken from all other persons concerned,

considering the fact that the process of implementing the scheme has already commenced and taking note of the emergent situation the Writ

Petitions will have to be dismissed as this Court shall not exercise the discretion available u/s 226 of the Constitution of India to the case of the

Petitioner. Therefore, the learned Additional Advocate General submitted that the Writ Petitions will have to be dismissed.

Discussions:

During the 5-A enquiry proceedings, the Petitioner gave specific objections. The objections are extracted hereunder:

(a) EXEMPTION of my property namely S. No. 167/2A (Part) at Nemilicheri Village, does not hinder or affect the formation of Road in the

ORR Project i.e. 60'' +60''

(b) EXEMPTION of my property does not hinder or affect the future formation of mass rapid rail system in the ORR Project i.e. 100''

(c) My property lies in a portion of the western side end of the LAND RESERVED FOR COMMERCIAL EXPLOITATION AND PUBLIC

PURPOSE in the ORR Project.

Therefore, a request has been made considering the fact that the earmarked alignment for the railways is not affected and the place earmarked

for the roads on either side of the area is also not affected, coupled with the public interest involved, the lands of the Petitioner need not be

acquired. However, the Respondents 2 and 5 have totally misconstrued the objections of the Petitioner. The objections that have been taken into

consideration and the remarks given by the second Respondent, are as follows:

No.

Objections View of 2nd Respondent

Objection seeking enhanced compensation As per the Land Acquisition Act, and as fixed by the Land Acquisition Officer, and as approved by

Commissioner, Compensation will be paid.

To provide alternate land or house site in lieu of acquisition Since the acquisition is for formation of Road, it is not possible to consider request

for alternate land or for residential plot.

Outer Ring Road to be formed abutting poramboke land Outer Ring Road plan is one already sanctioned by the Government. 100 path has

been ear marked for Railways. Now to change the alignment will lead to new problems.

Therefore it is not fit to consider a different alignment.

The Petitioner gave her objections on 27.05.2000 reiterating the fact that her earlier objections have not been considered at all and wrong

objections have been noted. Unfortunately, the 5th Respondent once again made a mistake in a cryptic manner and by a total non application of

mind, has rejected the objections of the Petitioner. The Petitioner gave further objections on 18.09.2000, ofcourse after the orders have been

passed in the 5-A enquiry. Thereafter, the declaration has been passed in G.O. Ms. No. 15, Housing and Urban Development Department, dated

17.01.2001. The Petitioner approached the first Respondent by writing a letter dated 01.01.2002 seeking exemption. She also sought for a sketch

made by the survey team u/s 6 of the Right to Information Act 2000. The communication dated 09.02.2002 of the Chief Planner is extracted

hereunder:

CP(ARD)/Member M.S.

V.C.

The request of the Petitioner may please be perused. It states that the Hospital is located within the space allocated for commercial exploitation

and hence may be considered for exemption from acquisition. A perusal of the sketch showing the location of the hospital, the alignment and the

space for commercial space indicates, indeed a significant portion falls within the commercial exploitation space.

This appears to be a hospital of fairly long standing from 1985 and caters to the surrounding areas. It may be possible for the hospital to be

exempted since the alignment is not affected in anyway and in any case after acquisition we would be giving it for commercial development.

Comparing that to a social cause like this hospital may be a more desirable development.

For consideration.

Pl.discuss

Sd. Chief Planner

4/2

Sd. Member Secretary

09.02.02

Discussed with Ms.

The reply communications dated 22.02.2002 and 26.02.2002 are also extracted hereunder:

As there is policy decision to stick with its alignment in its totality, it is not possible to agree to the request at the moment. Later the applicant may

ask for alienation of the land with the structure"".

Sd. Chief Planner

20/2

Sd. Member Secretary

22.02.02

AP/PA

To see the note above approved by Ms. Accordingly, put up draft letter to the applicant

Sd.

26/2

The Petitioner received a letter dated 28.02.2002 from the second Respondent, which is extracted hereunder:

Petitioner thereafter received letter dated 28.2.2002 from the 2nd Respondent which is extracted below:

BY RPAD

From:

To:

The Member # Secretary,

Dr. (Mrs.)Chellarani David,

Chennai Metropolitan

Nemilichery

1, Gandhi Irwin Road,

Thiruvallur Dist. - 602 024.

Egmore, Chennai # 600 008.

Lr. No. RC 15 / 2001 Unit IV

Dt.28.2.2002

Sir,

Sub: CMDA # Traffic Division # ORR Project # LA # Exemption requested # Reply sent.

Ref: Your Lr. Dated Nil

* * *

With reference to your letter cited, I am to inform that a policy decision has been taken by the Govt,. to stick with the alignment of ORR in its

totality. Therefore, the request of applicant to exempt the property/land in S. No. 167/2A part of Nemilichery Village in the ORR alignment may

not be considered. Later, the applicant may apply for alienation of the said land with structures.

Yours faithfully

The above said letters and communications would indicate that originally what was proposed is to use a portion of the Petitioner''s land for the

road. That is the reason why the Petitioner gave her objections seeking exemption. Thereafter, the Petitioner has obtained information from the

website of the second Respondent on 01.09.2008. The said information also shows that the plots have been earmarked for commercial

exploitation on both extreme ends of the Outer Ring Road In this regard, the Petitioner sent a letter dated 19.08.2009 under the Right to

Information Act. The second Respondent by letter dated 14.09.2009 replied to the Petitioner which is extracted hereunder:

With reference to your letter cited above, the following is furnished under the RTI Act 2005:

Para No.

Information sought by the Petitioner Reply

You are requested to let me know whether there is any case, where there exists any institution serving public cause like a private HOSPITAL,

within the space provided for commercial exploitation, other than Grace Hospital situate at Nemilicheri The land under acquisition in S. No.

167.2A part wherein a medical shop, a private Hospital and a house reported to be existing is required for formation of road lanes and foot path

forming part of the Outer Ring Road Other than the Petitioner''s private Hospital there is no case filed by any institution serving public cause is

pending against the acquisition of land for ORR as per the records available in CMDA.

2 You are also requested to kindly let me know whether the area ear marked for commercial exploitation on the extreme sides of the outer ring

road project, has been handed over to GMR infrastructure or to any other agency for development The ORR lands so far acquired is vested with

the CMDA and it has not been handed over to any other agency as on date.

The Petitioner sent another letter on 24.09.2009 which was replied by the second Respondent on 19.10.2009 in the following manner:

With reference to your letter cited above, the following is furnished under the RTI Act 2005:

Para No.

Information sought by the Petitioner

Reply

1 Admittedly the Hospital serving public cause is on Chennai Thiruvallur High Road (NH 205) which is 100ft. Road.

When there is already 100 ft. Highway abutting the Hospital in Survey No. 167/2A part, you are requested to let us know, whether ignoring the

100 ft. Highway, which is more than a Road Lane will any planner representing CMDA form a Road Lane and or a Foot Path in the area allotted

for Commercial Exploitation, with particular reference to S. No. 167/2A part, where the Hospital Serving Public Cause stands.

Your site is at the junction / intersection of the Chennai Thiruvallur High (CTH) Road and the Outer Ring Road (ORR).

The CTH Road (NH 205) is running in the East to West direction abutting in the North the S. No. 167 of Nemilicheri Village.

The proposed ORR passes through the S. No. 167/2A of Nemilicheri Village perpendicularly in the North-South direction, which will connect

Vandalur in the South with Minjur in the North passing through the Nemilicheri Village in the West of the Chennai Metropolitan Area.

The exact enclosed shows the configuration of the ORR. Further there will be a flyover which will be designed during execution at this junction of

CTH Road with ORR.

2 You are requested to provide me with the existing plan showing the Road Lanes and Foot Path on Outer Ring Road.

The following can be obtained by the Petitioner by contacting the Public Relations Officer, CMDA:

1)The map of the Nemilicheri Village showing the alignment of the ORR. Cost Rs. 300/-

2)Copy of FMB Sketch for S. No. 167#Rs.2/-

The Petitioner further applied for the Revised Feasibility Report which was duly furnished to her. Chapter 9.4(iv) of the Revised Feasibility

Report which deals with Allocation for Commercial Development is extracted hereunder:

Clause 9.4(iv) of the REVISED FEASIBILITY REPORT which deals with Allocation for Commercial Development is extracted below:

Allocation For Commercial Development: Linear development of commercial space on a narrow strip of land (27.45m) on either side for a

62.3km long corridor has never been adopted anywhere before and as such it may not be considered a sound commercial or urban development

proposition.

The ToR configuration renders the depth of land ear marked for commercial development, too small for attracting major establishments to set up

their facilities, unless they also acquire adjacent lands beyond the RoW.

In case the linear strip on both sides are posed for commercial development, the total saleable area will be about 180 hectares after allowing for

lengths not available for sale in case of water bodies, intersections, interchanges, high embankments on approaches to bridges etc. While

computing this, stretches contiguous to present settlements and developments in the catchment area have also been considered as permissible for

development. At an average price of Rs. 45 lakhs / hectare based on guideline values, the sale process will fetch about Rs. 81 crores, that too in

year 2010 or so. However, this has been discussed with CMDA at different point of time and the estimated revenue realizable is discussed here

below under Option 2.

Hence this approach of allocating a narrow strip of land on either side for mobilizing resources for funding the project needs to be jettisoned and

alternate strategies developed, which are in line with recent trends in road and urban development.

In sum, it can be surmised that ear marking of 30.5 m for the railway reserve and 27.45 m on either side for commercial development has severely

constrained the flexibility of configuring the ORR roadway in line with its positioning as a major urban arterial.

Quite clearly, the disadvantages of the ToR configuration far outweigh its advantages and hence the configuration proposed in the ToR needs to be

substantially revised.

Similarly, paragraph 9.5 of the Revised Feasibility Report deals with the review of ORR configuration and paragraph 9.6 which deals with the

configuration Options are produced hereunder:

Option 1: Provision of the transportation corridor in the centre of RoW with the centre-line of PTC in alignment with the centre-line of the RoW as

shown in Figure 9.4.

As in the case of 27.45 m strip in the ToR configuration, the revised open space area of 25 m width on either side is also not amenable to

commercial development.

Hence this area could be earmarked for provision of inter-alia green zone, conveying of utilities and locating way-side amenities. This space could

also be made available for abutting properties, an commercial basis, for meeting their Open Space Regulation (OSR) requirements.

Through this option, the ORR would acquire an aesthetic appeal besides also making available adequate spaces for development of way-side

amenities and utilities. The green zone would also effectively act as a buffer between the transportation corridor and abutting thereby reducing noise

and air pollution to the people residing / working in the abutting properties.

The abutting properties would also be greatly benefited by having a larger area for construction, as their OSR requirements could be met from the

open space area as explained above.

Above all, the significant benefit of this option is that the road carriageway can be expanded in a concentric manner by utilising the land earmarked

for open space area. If the entire strip earmarked for open space area is used for road formation, then additional seven lanes could be formed in

one direction alone, thereby enabling formation of a 20 land road at some point in distant future.

Option 2: Retaining the 50 m open space area as a contiguous entity and placing it side by side with the 72 m wide transportation corridor as

shown in Figure 9.5.

As against Option 1, one of the advantages of Option 2 is that the 50 m strip allocated on one side is considered deep enough for medium range

commercial development. Hence the original objective of ToR envisaging utilization of part of the space within RoW for commercial development

could still be partly tried out through this configuration.

In addition to the above, the commercial exploitation of the 50 m strip is considered to supplement the capital cost of project on one hand and

encourage the area development on the other hand. This is on the premises that the Government sponsored area development activities accelerates

the area development initiatives of private sector in any area. In addition, unlike Intermediate Ring Road, which failed to gear up area development,

the ORR is aimed to scatter the development in the peripherals of Chennai Metropolitan Area.

After several round of discussions, it was informed by CMDA that the revenue potential from sale of land in the area between NH 45 to NH 205

would be Rs. 8 lakhs per ground; between NH 205 to NH5 would fetch Rs. 3 lakhs per ground and between NH5 to TPP road would fetch Rs.

4 lakhs per ground. Based on this, the revenue through sale of land would come to around Rs. 250 crores approximately over the period of 5-6

years after development. However, the expenditure to be incurred for such development of strip to saleable packages is not considered while

arriving at the above revenue. Basis for realizable value of commercial area is as follows:

Stretch Kms Total Available Available Available Market Realisable

hectares hectares acres Grounds value per value

ground (Rs.inlakhs)

NH45- 29 145 87 214.89 2578.68 Rs.8 lakhs 1719

NH205

NH205- 19 95 57 140.79 1689.45 Rs.3 lakhs 422

NH 5

NH 5 # 12 60 36 88.92 1067.04 Rs.4 lakhs 356

TPP road

Rs.250 crs.2497

Paragraph 9.7 of the Revised Feasibility Report discussed about the advantages and disadvantages of the two Options namely, Option Nos. 1

and 2 which have been extracted above.

The said advantages and disadvantages as mentioned in the paragraph 9.7 which are also extracted hereunder:

(A) Advantages: The common advantages of both the options over that envisaged in the ToR are as follows:

i. Dynamic road configuration: The suggested options provide a dynamic character to the OR by earmarking areas for green zones including that of

open space area and planter strip which would break the monotony and provide an aesthetic appeal to the road. The PTC could also be used for

landscaping and arboriculture and locating wayside amenities, as an interim measure, till the facilities actually come up on this corridor.

ii. Optimisation of Central Reserve: The width of reserve for passenger rail transit facility has been reduced from 30.5 m to 22 m thereby releasing

8.5 m for roadway. The nomenclature has also been changed to Public Transportation Corridor, to enable greater flexibility in deciding its usage at

a later date.

iii. Provision for NMV Lanes: The NMV lanes of 2.25 m width on either sides would facilitate segregation of fast moving vehicles from slow

moving vehicles, thereby increasing the carrying capacity of the main carriageway and reduce accidents.

iv. Provision for Shoulders: The 1.0 m wide shoulders abutting the main carriageway could be used for construction of bus bays besides being used

for parking by sick vehicles.

(B) Disadvantages:

Despite the advantages listed in Para 9.7 (A) Option 2 suffers from some significant disadvantages which are listed below:

(i) Widening the roadway beyond dual-three land carriageway is impossible without encroaching into the public transportation corridor;

(ii) Since the public transportation corridor is on one side of the RoW, development of lands abutting ORR on either side may not happen in an

equitable manner.

(iii) The configuration itself appears unbalanced and may lead to access related problems from one side of the roadway to properties on the other

side;

(iv) The space available for land-scaping and arboriculture is limited to that of the planter strip between main carriageway and NMV lane

The above said facts would clearly indicate that originally plan 1 was contemplated by the second Respondent. By the said plan, a small extent

of land of the Petitioner was to be used for the formation of the Outer Ring Road and remaining extent has been earmarked for the commercial

exploitation. By the subsequent plan 2, it is planned to cut the Petitioner''s property into two Therefore, admittedly at the time of giving objections

u/s 5-A of the Act, only Option-1 was available. It is trite law that it is for the Respondents to put the acquired lands for such use as it wants it to

be. The power of the judicial review over a decision making process, particularly with reference to the adoption of plan 1 or 2, is very much

limited. It is no doubt true that prior to contemplating plan 2, the Respondents have been considering the possibility of giving exemption to the

Petitioner''s hospital. There is nothing on record to indicate about which one of the plan the Respondents are going to follow. However, the

Respondents, being the authorities concerned, are the best judge to decide about the suitability of plan 1 and plan 2.

The learned Counsel for the Petitioners Shri.C. Franco Louis, basing reliance upon the decision of the Honourable Apex Court, strenuously

contended that the procedures contemplated u/s 3(f) of the Act has not been followed The records pertaining to the order passed u/s 3(f) of the

Act have been brought before the Court and the Petitioner''s counsel was also permitted to peruse the same. It is clear that appropriate orders

have been passed u/s 3(f) of the Act. The Petitioner has not raised the non observance of the procedures either before the Land Acquisition

Officer or thereafter. The Petitioner has also not raised such a contention in the affidavit filed in support of these Writ Petitions and also in the

rejoinder filed. Therefore, it is not open to the Petitioner to agitate the same. It is seen that the said order has been passed by the first Respondent

covering the entire project. Therefore, this Court is of the view that at this length of time that too after the proceedings having become concluded, it

is not open to the Petitioner to raise such a contention. The Honourable Apex Court considering the plea raised at the fag end of the hearing in P.

Chinnanna and Others Vs. State of A.P. and Others, has held as follows:

We may, however, state that though we have examined the fresh ground of challenge in respect of Section 6(1) declaration raised on behalf of

the Appellants nearly seven years after it had become available to them, the same had been done solely to decide on the scope and applicability of

the first proviso to Section 6(1) and its explanation, inserted into the L.A. Act by the L.A. (Amendment) Act, 1984. Such examination cannot,

therefore, be understood as laying down that notwithstanding the lapse of time or laches in raising a legal ground in a proceeding under Article 226

of the Constitution or a proceeding under Article 136 of the Constitution there is an obligation on the part of the court concerned to examine such

fresh ground. In fact, in relation to acquisition proceeding involving acquisition of land for public purposes, the court concerned must be averse to

entertain writ petitions involving the challenge to such acquisition where there is avoidable delay or laches since such acquisition, if set aside, would

not only involve enormous loss of public money but also cause undue delay in carrying out projects meant for general public good. When a fresh

ground of attack to acquisition proceedings, even if it involves purely a question of law, its entertainment cannot be governed by a principle

different from that which governs entertainment of writ petitions before the High Court or proceedings arising therefrom before this Court under

Article 136 of the Constitution.

Hence considering the said ratio, this Court is of the view that it is not open to the Petitioner to raise such contention and accordingly, the same

is rejected.

The learned Counsel for the Petitioner relying upon the judgments rendered by the Honourable Apex Court, as well as this Court strenuously

contended that the entire enquiry conducted by the fifth Respondent has become farce. It is submitted that the proceedings are liable to be set

aside for non application of mind, as it involves adjudication of valuable rights.

This Court finds considerable force in the submissions made by the learned Counsel for the Petitioner. The law regarding consideration of the

objection has been settled by the Honourable Apex Court as well as the Division Bench of this Court in R.NATARAJAN v. THE UNION OF

INDIA [ 2010 (6) CTC 337], wherein it has been held as follows:

It is true that a limited right has been given to the land owner or person interested u/s 3(2) of the Act to file objection to the Acquisition

proceedings. But such a right given to the person is not an empty formality, rather it is a substantive right. It has been consistently held by the

Supreme Court that the person whose property is being or is intended to be acquired should have a proper and reasonable opportunity of

persuading the authorities that the acquisition of property can be avoided. In Munshi Singh and Others Vs. Union of India (UOI), , their Lordships

taking notice of the object and importance of Section 5-A of the Act observed as under:

Section 5-A embodies a very just and wholesome principle that a person whose property is being or is intended to be acquired should have a

proper and reasonable opportunity of persuading the authorities concerned that acquisition of the property belonging to that person should not be

made. ... The legislature has, therefore, made complete provisions for the persons interested to file objections against the proposed acquisition and

for the disposal of their objections. It is only in cases of urgency that special powers have been conferred on the appropriate Government to

dispense with the provisions of Section 5-A:

The aforesaid view has been subscribed by the Supreme Court in the later decision in the case of Union of India (UOI) and Others Vs. Mukesh

Hans etc., , wherein their Lordships held as under: (Para.36, page 28) ""It is clear from the above observation of this Court that right of

representation and hearing contemplated u/s 5-A of the Act is a very valuable right of a person whose property is sought to be acquired and he

should have appropriate and reasonable opportunity of persuading the authorities concerned that the acquisition of the property belonging to that

person should not be made.

Therefore, in our opinion, if the appropriate Government decides to take away this minimal right then its decision to do so must be based on

materials on record to support the same and bearing in mind the object of Section 5-A.

Coming back to the order again, by which objection was disallowed, admittedly no reasons had been assigned. Although the authority was

exercising the statutory duty to invite objection, hear the parties, and take a decision either allowing or disallowing the objection, the authority was

bound to assign valid reasons. As per the 14th Report relating to Judicial Administration in India, the Law Commission recommended that even in

administrative decision, provisions should be made that it should be accompanied by reasons.

Applying the said principles to the facts of the case, it is very much clear that there is total non application of mind of the fifth Respondent in

considering the objections of the Petitioner. However the question in the present case on hand is as to whether the proceedings can be set aside

only on that ground alone. Admittedly, in the present case on hand the award has been passed. There is no dispute about the fact that the

proposed acquisition is in public interest. It is also not in dispute that there is an overwhelming public interest in the construction of a Outer Ring

Road, than the hospital belonging to the Petitioner Therefore the Petitioner''s interest will have to be give way in favour of the public interest.

Considering the public interest involved, the Honourable Apex Court has held in Ramniklal N. Bhutta and another Vs. State of Maharashtra and

others, as follows:

Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now

launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are

anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace

of progress achieved by some of the Asian countries, referred to as #Asian tigers#, e.g., South Korea, Taiwan and Singapore. It is, however,

recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of

transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call

for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the

acquisition proceedings in courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is

asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has

come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under

Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in

the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same.

Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts

have to weigh the public interest vis-`-vis the private interest while exercising the power under Article 226 # indeed any of their discretionary

powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with

some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or

calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing

the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is

neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with

challenges to acquisition proceedings.

In P. Chinnanna and Others Vs. State of A.P. and Others, as already pointed out Their Lordships have held that in fact, in relation to acquisition

proceeding involving acquisition of land for public purposes, the court concerned must be averse to entertain writ petitions involving the challenge

to such acquisition where there is avoidable delay or laches since such acquisition, if set aside, would not only involve enormous loss of public

money but also cause undue delay in carrying out projects meant for general public good.

Therefore, applying the ratio laid down by the Honourable Apex Court and considering the fact that the award has been passed as early as on

31.01.2002, coupled with the further fact that except the Petitioner''s land, all other lands have been taken over and the project has been in fact

commenced, this Court is of the view that the relief sought for in the Writ Petitions cannot be granted.

Delay in approaching the Court:

33.A Constitutional Bench of the Honourable Apex Court in Aflatoon and Others Vs. Lt. Governor of Delhi and Others, has held in the following

manner:

Assuming for the moment that the public purpose was not sufficiently specified in the notification, did the Appellants make a grievance of it at the

appropriate time? If the Appellants had really been prejudiced by the nonspecification of the public purpose for which the plots in which they were

interested were needed, they should have taken steps to have the notification quashed on that ground within a reasonable time. They did not move

in the matter even after the declaration u/s 6 was published in 1966. They approached the High Court with their writ petitions only in 1970 when

the notices u/s 9 were issued to them.

The ratio laid above has been consistently followed by this Court as well as the Honourable Apex Court. Therefore, considering the said ratio

and inasmuch as the award having been passed, the discretion of this Court cannot be extended to the Petitioner.

The issue can be looked from a different angle as well. As discussed above, there is no iota of doubt about the urgent need of Outer Ring

Road. The facts also reveal that out of the large extent of land acquired, only some of the land owners alone have filed Writ Petitions and those

Writ Petitions have been dismissed. Therefore, this Court has to take those facts also into consideration, while considering a request to quash the

proceedings. In a similar situation, the Honourable Apex Court in Nand Kishore Gupta and Others Vs. State of U.P. and Others, has held in the

following manner:

The High Court has refuted all these contentions by giving good reasons.

We will not go into these individual cases once the High Court has decided not to entertain these pleas and, in our opinion, correctly. After all, this

was an acquisition for building up a highway and the abovementioned writ petitions pertained to the land required for interchange. It is obvious that

the alignment of the highway cannot be changed, as its design has been prepared after consideration of so many factors by the experts in building

the road. Its direction or alignment, therefore, cannot be changed, with the result, the area which is required for interchange, also cannot be

changed. This is a typical example of the individual having to sacrifice his land for the public good. There can be no dispute that this road would

add to the betterment of the citizens of East Yamuna area in particular and Uttar Pradesh in general. This is apart from the fact that the majority of

the persons whose lands have been acquired, have either not objected to it or have accepted the compensation without any demur. It will,

therefore, not be possible for us to go into these individual grievances, which have been rightly rejected by the High Court.

In fact, in Balbir Singh v. State of U.P. (CMWP No. 48978 of 2008 decided on 05.10.2009), it was pointed out that out of the 12,315

affected farmers in 133 villages over the total area of 1638 ha of the Expressway, 11,387 have already received compensation and only 142

farmers have raised the issues. The High Court has rightly held that the private interest is always affected to some extent in such large schemes

requiring the acquisition of land. The High Court has rightly held that a holistic view had to be taken to look for an all round development without

forgetting about our heritage, culture and traditions. We also, therefore, would not entertain the objections, feebly raised before us, individually.

It has been strongly argued on behalf of the State, the Company and YEIDA that the major activity of land acquisition process is over. It has

been noted in Balbir Singh v. State of U.P. (CMWP No. 48978 of 2008 decided on 05.10.2009) that out of the 12,315 affected farmers in 133

villages over the total area of 1638 ha of the Expressway, 11,387 have already received compensation and only 142 farmers out of such a large

number of villages have raised the issues, leaving 139 farmers who had not taken the compensation. This is apart from the fact that only 9 writ

Petitioners came in that writ petition. The story in Nand Kishore Gupta v. State of U.P. (CMWP No. 31314 of 2009 decided on 30.11.2009)

writ petition which was disposed of by the High Court along with other writ petitions is no different.

The learned Counsel appearing on behalf of the Appellants could not deny the fact that the total number of Petitioners concerned in these

acquisition proceedings, coming up before the High Court, was extremely insignificant as compared to those who had accepted the compensation.

Of course, that by itself may not be the only reason to hold against the Appellants (the Petitioners), however, that fact will have to be kept in mind

while deciding the issues which cover the whole acquisition process, which acquisition is for the purpose of development of 25 million sq m of land.

The High Court has also noticed this aspect. We have mentioned this aspect only with a limited objective of showing that the criticism against the

whole scheme which would invalidate the acquisition would be difficult to be accepted, particularly in this case, in view of the fact that majority of

the landowners have parted with possession, taken the compensation and thus, the whole scheme has progressed to a substantial level, wherefrom

it will be extremely difficult now to turn back to square one.

Hence, in view of the categorical pronouncement of the Honourable Apex Court and considering the overwhelming public interest, as against

the private interest of the Petitioner and the limited public interest of running a hospital, this Court is of the view that the Writ Petitions seeking to

quash the proceedings will have to be rejected.

Alternative plea:

An alternative request has been made by the learned Counsel for the Petitioner. It is submitted by him and also in the written submissions that

in the event of this Court coming to the conclusion, a direction will have to be issued to the Respondents to consider the request for an alternative

site. The learned Counsel submitted that considering the public interest involved and the procedural irregularities committed by the Respondents, a

suitable direction will have to be given.

This Court finds considerable force in the submissions made by the learned Counsel for the Petitioner. Admittedly, the Petitioner has been

running a hospital with Pharmacy and living in a residential house. The question as to whether a hospital is having an element of public purpose, has

been considered by the Honourable Apex Court in Collectors of 24 Parganas and Others Vs. Lalit Mohan Mullick and Others, which has been

extracted hereunder:

.......... The Respondents can succeed only if they can establish to the satisfaction of the Court that putting up of a hospital for crippled children

is not a public purpose connected with the rehabilitation of displaced persons. To our pointed question to the Respondent''s counsel whether the

construction of a hospital for crippled children is a public purpose or not he admitted, after some hesitation, that it was a public purpose. The next

step is to ascertain whether putting up of such a hospital has something to do with rehabilitation of displaced persons.

In Collins Dictionary of the English Language, the meaning for the word ''rehabilitate'' is given as to help a person (who is physically or mentally

disabled or has just been released from prison) to readapt to society or a new job as by vocational guidance, retraining or thereby ...."". By

rehabilitation what is means is not to provide shelter alone. The real purpose of rehabilitation can be achieved only if those who are sought to be

rehabilitated are provided with shelter, food and other necessary amenities of life. It would be too much to contend, much less to accept, that

providing medical facilities would not come within the concept of the word ''rehabilitation''. No detailed discussion is necessary to hold that putting

up of a hospital and in particulars one putting up of a hospital and in particular one for crippled children is one of the important facets of the

concept of ''rehabilitation of displaced persons''.

Therefore, considering the ratio laid down by the Honourable Apex Court, this Court is of the view that an element of public purpose is

involved in running a hospital.

Considering the scope of judicial discretion in issuing directions, it has been held by the Honourable Apex Court in T.RAMARAJ v. STATE

OF TAMIL NADU [AIR 1994 Mad 313] in the following manner:

The above analysis of the case based on the judgments of this Court as well as the apex Court poses a moot point, as to whether the selection

of the Petitioner''s site for the development of the neighborhood scheme was proper and justified, I am of the opinion that I must follow the last

mentioned Supreme Court judgment in State of Punjab and Another Vs. Gurdial Singh and Others, , which has very lucidly pointed out the scope

of the Court''s power to interfere with the decision of the Government. At the same time, I must record that the Respondents have not done justice

to the Petitioner who is an ex-serviceman. The only way of balancing the rights of parties, is to give appropriate directions to the Government while

upholding the acquisition proceedings ............. I am not willing to accept the last claim of the Respondents, because --- 5A report, which I have

extracted above shows that the Petitioner referred to the construction and no attempt was made by the Land Acquisition Officer to verify the

correctness of the same. For the above reasons, I propose to give the following directions in the Writ Petition.

(i) The notification u/s 4(1) and the Declaration u/s 6 impugned in this Writ Petition are upheld:

(ii) The Writ Petitioner should not be dispossessed of the land and the house in his possession unless and until the government specifically

considers, whether the subject site alone can be exempted from the acquisition proceedings:

(iii) For this purpose of the Government considering the claim for exemption, I direct the Petitioner to file an application to the Government, within

three weeks from today. If such an application is filed, the Government is directed to consider and pass orders, in the light of the observations

contained in this judgment.

(iv) The Government while considering the claim for exemption can also suggest the alternative site with adequate compensation. Till the

Government takes a final decision on the application for exemption, the Petitioner shall not be disturbed from the subject site in which he has

already built a house. The writ petition is ordered in the above terms. There will be no order as to costs.

This Court in R. Thiruvengadam Vs. The Secretary to Government, Housing Department, Government of Tamil Nadu and Others, while

holding that the objections cannot be overruled mechanically, was pleased to give a direction that a dwelling house will have to be excluded.

The Honourable Apex Court while setting aside the judgment of the Division Bench of the Haryana High Court in JAGDISH CHAND And

Anr. v. STATE OF HARYANA AND ANOTHER [ (2005) 10 SCC 162] has observed as follows:

8......

The Secretary, Urban Estates Department, State of Haryana is directed to consider the objections of the Appellants only so far it relates to

exclusion of the land to the extent occupied by the structure and appropriate open area around the structure for the beneficial enjoyment of the

Appellants. However, this direction shall not come in the way of the authorities in removing the structures, if required to the purposes of road,

hospital and other civic amenities.

The Secretary, Urban Estates Department shall decide not only the existence of the structures prior to Section 4(1) notification or subsequent

to, he shall also decide the extent of structure which existed prior to Section 4(1) notification.

It is also open to the authorities to make adjustment or readjustment of plots for the purpose of planned development and in case it becomes

necessary to give a little additional area from the plots to the Appellants, the Appellants shall be bound to take that additional area and also be

bound to pay cost of such area as is chargeable to other allottees. The Appellants shall also be bound to pay the developmental charges as is

charged from other allottees. It is open to the parties to place documents or material in support of their contentions.

We except that as far as possible, the Respondents shall try to retain the structures, unless it becomes difficult for them to have a planned

development without removing them in view of what is stated above.

It is further to be seen that as per the revised feasibility report, particularly in para 9.6, there is availability of lands for sale. The learned

Additional Advocate General submitted that utilization of any excess land is a matter to be decided in future. Be that as it may, considering the

peculiar facts of the case, coupled with the fact that the Petitioner has been agitating her rights, which not only involved her private interest, but also

a public interest, this Court is of the view that it is a fit case where discretion can be exercised by issuing certain directions to the Respondents.

Accordingly,

(i) the Petitioner herein is directed to give a detailed representation placing all the materials available with her before the Respondents, namely,

Respondents 1 and 2, seeking either exclusion of the lands acquired or for allotment of alternative site.

(ii)The said representation will have to be made within a period of two weeks from the date of receipt of a copy of this order.

(iii)After the receipt of the said representation to be given by the Petitioner, the Respondents 1 and 2 shall consider either the release of the land in

favour of the Petitioner or alternative accommodation.

(iv)The Respondents 1 and 2 shall consider the same within a period of eight (8) weeks from the date of the said representation.

(v)If the Respondents proceed with plan 2, then the Petitioner''s request for exclusion need not be considered and in that event, her request for

alternative site alone can be considered. The Respondents 1 and 2 shall consider the request for alternative site as per the guidelines, rules and

regulations.

(vi)Considering the fact that the project has just commenced and considering the further fact that the Petitioner has been running the Hospital till

now, the Petitioner''s possession shall not be disturbed till appropriate orders are passed by the Respondents 1 and 2.

(vii)The directions issued by this Court need not be followed by the Respondents 1 and 2, if the Petitioner does not make any representation,

within the time limit granted by this Court and in that event, it is open to the Respondents to proceed in accordance with law.

The Writ Petitions are disposed of accordingly. No costs Consequently, connected miscellaneous petitions are closed.