Madras High Court
The Clasic Farms (Chennai) Ltd vs The Union Of India on 6 December, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.12.2013
CORAM
THE HONOURABLE MR. JUSTICE K.RAVICHANDRABAABU
W.P. Nos.29508 and 29509 of 2010
and
M.P.Nos.2 and 2 of 2010 and 1 and 1 of 2012
The Clasic Farms (Chennai) Ltd,
Rep. By its Managing Director,
Mr.R.Babashankar,
at Clasic Farms Road, I.T.Highway,
Sholinganallur, Chennai-119. .. Petitioner in
both W.Ps.
..vs..
1.The Union of India,
Rep. By its Secretary to the Ministry of
Road Transport and Highways,
Transport Bhavan,
NO.1, Parliament Road, New Delhi.
2.The Deputy Secretary,
Ministry of Road Transport & Highways,
Transport Bhavan,
No.1, Parliament Road,
New Delhi.
3.The Director,
Ministry of Road Transport & Highways
Transport Bhavan,
NO.1, Parliament Road,
New Delhi.
4.The Competent Authority and Special District
Revenue Officer (L.A), NH 47 & 67,
Door No.3, Savari Muthu Chettiar Lane,
Red Fields, Coimbatore 45.
5.The Project Director,
National Highways Authority of India,
Old No.28/1, New No.51/2, 50 feet road,
Krishnasamy Nagar, (Gem Hospital Backside),
Ramanathapuram, Coimbatore 641 045
(R5 impleaded as per order dated 3.11.2011
by MMSJ in MP 1/2011 in WP 29508/2010 ...Respondents in
both W.Ps.
Prayer in W.P.29508/2010:Writ petition filed under Article 226 of the Constitution of India for issuance of a writ of certiorari to call for the records of the second respondent in connection with the II respondent's notification No.S.O.696(E) issued under section 3(A) 1 of the National Highways Act 1956 dated 26.3.2010 and the third respondent's notification issued pursuantly under section 3D(1) and (2) of the National Highways Act 1956 dated 11.08.2010 in S.O.No.1961(E) in so far as the petitioner's lands in S.Nos.168/1B3, 168/1B4, 168/1B5 of Thirumalayampalayam village, Coimbatore South Taluk and Coimbatore District are concerned and quash the same.
Prayer in W.P.29509/2010:Writ petition filed under Article 226 of the Constitution of India for issuance of a writ of certiorari to call for the records of the second respondent in connection with the II respondent's notification No.S.O.696(E) issued under section 3(A) 1 of the National Highways Act 1956 dated 26.3.2010 and the third respondent's notification issued pursuantly under section 3D(1) and (2) of the National Highways Act 1956 dated 19.07.2010 in so far as the petitioner's lands in S.Nos.845/1A2B, 846/1, 847/2 of Madukarai village, Coimbatore South Taluk and Coimbatore District are concerned and quash the same.
For Petitioner : Mr.V.Selvaraj
for Mr.R.Srinivas
For Respondents : Mr.M.Devandran for R1 to R4
Mr.P.Wilson for R5
Additional Advocate General
Assisted by Mr.S.Prassanna
C O M M O N O R D E R
In both these writ petitions, the petitioner challenges the notification issued under Section 3-A(1) of the National Highways Act, 1956 dated 26.03.2010 and the consequential declaration made under section 3D(1) and (2) of the National Highways Act, 1956 dated 11.08.2010 and 19.07.2010 respectively in respect of the subject matter lands at two different villages. Since the facts and issue involved in both the writ petitions are one and the same, they are dealt with together as hereunder.
2.The case of the petitioner company is as follows:
The petitioner owns 4.38 hectares of land in Survey Nos.845/1A2, 846, 847, 848/1 of Madukkarai village and 1.51.50 hectares of land in Survey Nos.168/1B, 168/1B4 and 168/1B5 at Thirumalayampalayam village in Coimbatore District. The second respondent through a publication made in the newspaper dated 17.04.2010 issued a notice proclaiming that the land measuring 3100, 2205 and 37 sq.mts. respectively in Survey Nos.845/1A2, 846, 847 of Madukkarai village and the lands in Survey Nos.168/1B3, 168/1B4 and 168/1B5 at Thirumalayampalayam village measuring 4109, 3496 and 3493 sq.mts. respectively were to be acquired for the purpose of broadening the National Highway No.47 from Km102/035 to Km 183/060 (Chengapalli-Walaiyar portion) for the purpose of establishing and maintaining 6 lanes and 4 lanes road. The Central Government had issued a notice under section 3A (1) of the National Highways Act, 1956 in the Central Government Gazette. The said notice invited objections from the interested persons against the above acquisition has to be filed before the fourth respondent under section 3C(1) of the said Act. The petitioner submitted two objections dated 29.04.2010 separately in respect of the lands situated in those two villages. The petitioner specifically stated about the improvements made by them in the said lands by incurring huge expenditure. It was not clear as to whether the petitioner's lands were intended to be used for four lane or six lane widening. The extent of the acquisition was not stated. The notification did not contain even a brief description of the lands which were proposed to be acquired out of the bigger extent owned by the petitioner. The dimension of the road was not stated. There were poramboke lands available near the petitioner's lands and therefore, these lands need not be acquired. As those details are not available under 3A(1) notice, the petitioner sought for necessary details through their objections filed on 29.04.2010. The fourth respondent issued a notice on 10.05.2010 calling upon the petitioner to attend for an enquiry on 17.05.2010. The petitioner sent a letter on 14.05.2010 to the fourth respondent requesting for the supply of details sought by them and for conducting the enquiry after supplying of the same. The fourth respondent after receiving the above communication, sent two notices on 24.05.2010 by stating that the details sought for by the petitioner were being supplied through the said notice. It was stated therein that the exact measurement and dimension of the lands to be acquired along with Survey Number and subdivision should be given after the survey work was over and the same would be disclosed in the notice issued under section 3D(1) of the said Act. It was also stated that the petitioner could peruse the rough sketch in the office during the office hours. After adducing those particulars and without fully complying with the request of the petitioner, the fourth respondent called upon the petitioner to appear for enquiry on 31.05.2010. Since the Managing Director of the petitioner was out of station, a telegram was sent on 17.05.2010 followed by a detailed letter on 31.05.2010 requesting to conduct the enquiry after 15.06.2010. However, the fourth respondent without considering the above request, held an enquiry on 31.05.2010 in the absence of the petitioner Company and consequently, passed an order on the same day overruling the objections raised by the petitioner company. Thus, aggrieved against the notification issued under section 3 A (1) and (2) and the consequential declaration made under section 3 D (1) and (2) of the said Act, the present writ petitions are filed before this Court.
3.The fifth respondent filed a counter affidavit wherein it is stated as follows:
The project of formation of 6/4 laning/widening of Chengapalli-Walayar section (from Km 102/035 to Km183/060) has been taken up for execution under National Highways Development Programme Phase-II. The Consultant carried out the feasibility study and furnished the project particulars including land plan and schedule. Consequently, the civil work contract has been awarded to M/s IVRCL Chengapalli Tolways Ltd., vide Agreement dated 25.03.2010 under design, build, finance operate and transfer basis. Gazette Notification under section 3(A) of the said Act was issued by the Government of India in the gazette dated 23.02.2010 and the same was published on 26.03.2010 for villages under acquisition. The substance of the gazette notification was published in two local newspapers namely 'The New Indian Express' (English) and 'Dinathanthi' (Tamil) dated 17.04.2010 as required under Section 3(A)(3) of the said Act. After such publication, the persons interested has to file their objections within 21 days from the date of publication. As the petitioner company has given their objections to the fourth respondent, it is an undisputed fact that they are still aware of the acquisition proceedings. Once the objection is filed by them, they are entitled to peruse all the documents available with the fourth respondent including the detailed project report. Section 3(A) notice issued contains the brief description of the land as required under section 3 A(2) of the said Act. The declaration under section 3D alone shall give the detailed description of the land viz., name of the land owner, person interested in the property sought to be acquired and other details. The entire revenue records relating to the subject matter land show that they are agricultural dry lands and there is no obligation on the part of the Authority to conduct a roving enquiry to know whether the land is agricultural or plot land. The petitioner was provided with all information such as the extent of the land sought to be acquired with survey numbers. The petitioner was called upon to attend an enquiry on 17.05.2010. However, they did not appear. At any event, the competent authority has provided reasonable opportunity to the petitioner to appear for the enquiry on 31.05.2010. Even then, they have not appeared. Further time could not be granted for the enquiry since the completion of the project is of national importance.
4.Mr.V.Selvaraj, learned counsel appearing for the petitioner submitted as follows:
Section 3A(1) notification does not contain the details. Even though the petitioner requested for the details, the same were not furnished. In the absence of those details, the petitioner could not make an effective objection against the acquisition. The petitioner's absence at the time of enquiry cannot be put against them without furnishing the details sought for by them. Instead of furnishing those details, the authorities informed the petitioner that the same would be given after issuing 3D declaration. Once there is no effective publication of notification under section 3A(1) and when such notice is vitiated, then all other subsequent proceedings are also vitiated. In support of his submission the learned counsel relied on the following citations,
(i)2005(13) SCC 477, Competent Authority v. Barangore Jute Factory and Others;
(ii)2010(6) CTC 337, R.Natarajan v. The Union of India
5.Per contra, Mr.S.Prasanna, learned counsel appearing for the fifth respondent would submit as follows:
Section 3A(2) of the said Act only contemplates brief description of the property which has been rightly given under the 3A notification. In the said notification itself, the land owners/interested persons were invited to visit the office of the respondents to see the plan and other details. The petitioner did not utilise the opportunity. On the other hand, they failed to appear before the enquiry inspite of granting several opportunities. Consequently, the enquiry was completed on 31.05.2010 and 3D declaration came to be passed in accordance with law. After 3D declaration, land vested with the government. Therefore, the petitioner cannot question the acquisition proceedings once vesting of the land takes place. 90% of the project was already completed. Only because of pendency of these writ petitions, the project could not be completed and the same is stayed. In support of his submission, the learned counsel relied on the following citations.
(i)2006(5)CTC 634, The General Manager (Tech) and Project Director v. Sridevi;
(ii)2010(1)MLJ 901, V.Nandakumar v. Union of India;
(iii)1996(8) SCC 18, Sam Hiring Co v. A.R.Bhujbal and Others;
(iv)1997(1)SCC 134, Ramniklal N.Bhutta and Another v. State of Maharashtra and Others;
(v)2011(8)MLJ 53, Union of India v. Dr.Kushala Shetty and others;
(vi)2013(3) AKR 201, Miss Bernadette Fernandes and Others, etc., v. Union of India and Others, etc.,
6.Heard the learned counsels appearing on either side and perused the materials placed before this Court.
7.The petitioner is aggrieved against the notice issued under section 3A(1) of the National Highways Act, 1956 and the consequential declaration made under section 3D(1) and (2) of the said Act. The only ground urged before this Court is that the notification under section 3A(1) does not contain even a brief description of the lands proposed to be acquired and hence, the petitioner was prevented from making an effective objection against such acquisition and in view of the defective notification issued under section 3A(1) of the Act, all further proceedings including the issuance of Section 3D declaration are illegal and thus, liable to be set aside.
8.According to the petitioner, the impugned proceedings do not satisfy the mandatory requirements contemplated under the National Highways Act, 1956. Before considering the said submission, it is better to refer and understand the relevant provisions under the National Highways Act, 1956 and their scope. Section 3A of the said Act reads as follows:
"3-A.Power to acquire land, etc.,-(1) Where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land.
(2) Every notification under sub-section (1) shall give a brief description of the land.
(3)The competent Authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language."
9.Section 3C of the said Act reads as follows:
"3-C.Hearing of objections:(1) Any person interested in the land may, within twenty-one days from the date of publication of the notification under sub-section (1) of Section 3-A, object to the use of the land for the purpose or purposes mentioned in that sub-section.
(2) Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections.
Explanation:- For the purpose of this sub-section, "legal practitioner", has the same meaning as in clause (i) of sub-section (1) of section 2 of the Advocates Act, 1961 (25 of 1961).
(3) Any order made by the competent authority under sub-section (2) shall be final."
10.Section 3D of the said Act reads as follows:
"3D.Declaration of acquisition:- (1) Where no objection under sub-section (1) of Section 3-C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in sub-section (1) of section 3-A. (2)On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances.
(3) Where in respect of any land, a notification has been published under sub-section (1) has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect:
Provided that in computing the said period of one year, the period of periods during which any action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of section 3-A is stayed by an order of a Court, shall be excluded. (4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any Court or by any other authority."
11.From the perusal of the above relevant provisions, it could be seen that the Central Government may by notification in the official gazette, declare its intention to acquire any land by exercising its power under section 3A and every such notification shall give a brief description of the land sought to be acquired. The said notification shall also be published in two local newspapers. Any person interested in the land may object to the proposed acquisition within 21 days from the date of publication of the notification under section 3A(1). The competent authority shall give the objector an opportunity of being heard and after hearing all such objections and making such further enquiry if any, the competent authority may either allow or disallow the objections. In pursuant to the order passed under section 3C by the Competent authority disallowing the objection or if no objection has been made within the period specified, the competent authority shall submit a report to the Central Government and on receipt of such report, the Central Government shall declare by notification in the official gazette that the land should be acquired for the purpose as mentioned in 3A notification. Once such declaration is published under 3D(1), the land shall vest absolutely with the Central Government free from all encumbrances. If no declaration is made under Section 3D(1) within a period of one year from the date of publication of notification under section 3A, the said notification shall cease to have any effect.
12.It is the contention of the petitioner that the authorities failed to give a brief description of the land as required under section 3A(2). For immediate reference, the notification issued under section 3A(1) of the said Act, in this case, is extracted hereunder in so far as the petitioner's lands are concerned:
"Ministry of Road Transport and Highways Notification New Delhi, the 26th March, 2010 S.O.696(E)-In exercise of the powers conferred by sub-section(1) of Section 3A of the National Highways Act, 1956 (48 of 1956) (hereinafter referred to as the said Act), the Central Government, after being satisfied that for the public purpose, the land, the brief description of which is given in the schedule below, is required for building (widening/six-laning, etc.), maintenance, management and operation of National Highway No.47, on the stretch of land from Km 102/035 to Km 183/060 (chengapalli-Walayar Section) in Districts Tiruppur and Coimbatore in the State of Tamilnadu hereby declares its intention to acquire such land.
Any person interested in the said land may, within twenty one days from the date of publication of this notification in the Official Gazette, object to the use of such land for the aforesaid purpose under sub-section(1) of section 3C of the said Act.
Every such objection shall be made to the competent authority, namely, the Special District Revenue Officer (LA) NH 547 and NH67, Door No.3, Savarimuthu Chettiar Street (Near Om Sakthi Hospital), Red Fields, Coimbatore -45, in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections.
Any order made by the competent authority under sub-section (2) of Section 3C of the said Act shall be final.
The land plans and other details of the land covered under this notification are available and can be inspected by the interested person at the aforesaid office of the competent authority.
The brief description of the land to be acquired, with or without structure, falling within the stretchs of land from Km 102/035 to Km 183/060 (Chengapalli-Walayar Section) of the National Highway No.47 in the State of Tamilnadu.
Serial No. Name of District Name of Taluk Name of Village Survey Number Type of land Nature of land Area in (square metres) 1 Coimbatore Coimbatore South Madukarai 845/1A2 846 847 Private Private Private Dry Dry Dry 3100 2205 37 2 Coimbatore Coimbatore South Thirumalayampalayam 168/1B3 168/1B4 168/1B5 Private Private Private Dry Dry Dry 4109 3496 3993
13.The petitioner contends that the above details given in the 3A notification do not contain a brief description of the lands, as contemplated under section 3A(2). I do not agree with such contention. A perusal of the above notification would show that while describing the land to be acquired, the authorities have given the name of the district, name of the Taluk, name of the village, the survey number, type of the land, nature of the land and the area in square meters sought to be acquired. Going by these details, it cannot be said at any stretch of imagination that no brief description of the land is given in the notification. The word "brief" is described in the Oxford Dictionary as "concise; using few words". Thus, the petitioner cannot expect the full description of the land with metes and bounds since the Act itself contemplates only furnishing of a brief description of the land under section 3A(1) notification.
14.The learned counsel appearing for the petitioner heavily relied on the decision of the Apex Court reported in 2005 (13) SC 477, Competent Authority v. Bangalore Jute Factory and Others, in support of his contention. In the above decision, the Apex Court has held at paragraph No.5 and 7 as follows:
"5.....So far as the question whether the impugned notification meets the requirement of Section 3-A(1) of the Act regarding giving brief description of land is concerned, we have already shown that even though plot numbers of lands in respect of each mouza are given, different pieces of land are acquired either as whole or in part. Wherever the acquisition is of a portion of a bigger piece of land, there is no description as to which portion was being acquired. Unless it is known as to which portion was to be acquired, the petitioners would be unable to understand the impact of acquisition or to raise any objection about user of the acquired land for the purposes specified under the Act or to make a claim for compensation. It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning. In our view, the impugned notification fails to meet the statutory mandate. It is vague. The least that is required in such cases is that the acquisition notification should let the person whose land is sought to be acquired know what he is going to lose. The impugned notification in this case is , therefore, not in accordance with the law.
7.The availability of a plan would have made all the difference. If there is a plan, the area under acquisition becomes identifiable immediately. The question whether the impugned notification meets the requirement of brief description of land under Section 3-A(2) goes to the root of the matter."
15.From the reading of the facts and circumstances of the case before the Apex Court in the above said decision, it could be seen that except providing survey numbers, full area, land classification and the area of proposed acquisition, the authorities therein have not made the cite plan available. That is why, the Apex Court has observed at paragraph No.7 that the availability of the plan would have made all the differences and if there is a plan, the area under acquisition becomes identifiable immediately. As the authorities therein did not make such cite plan available, the Apex Court has come to the conclusion that the impugned notification therein failed to meet the statutory mandate and thus, it is weak. In my considered view, the facts of the case before the Apex Court are distinguishable with the facts of the present case as discussed below.
16.In this case, the 3A notification, as extracted supra, clearly indicates that the authorities have made the cite plans and other details of the land covered under the notification available in their office and invited the interested persons to inspect the same. The relevant portion of the said notification is extracted hereunder:
."The land plans and other details of the land covered under this notification are available and can be inspected by the interested person at the aforesaid office of the competent authority."
17.Therefore, it is not correct to say that the notification did not give the brief description of the land as contemplated under section 3A(2). But on the other hand, apart from giving the brief description as discussed supra, the land plan and other details were also made available for inspection by the interested persons. Hence, I am of the view that the petitioner cannot rely on the above decision of the Apex Court, which is factually distinguishable.
18.In fact, the Hon'ble Division Bench of this Court in a decision reported in 2006(5) CTC 634, (cited supra), considered the similar objection raised in respect of similar notification issued therein as that of the present case. After considering the above notification and also considering the above cited decision of the Apex Court in Bangalore Jute Factory case, the Hon'ble Division Bench has rejected the contention of the land owners. Paragraphs 7,8, 9 and 10 reads as follows:
"7.The land plans and other details of lands covered under this notification are available and can be inspected by the interested person at the office of the competent authority.
8.The notification specifically mentions that the plans and the other details of the lands covered under the notification would be available and could be inspected by the interested persons in the office of the competent authority. Thus, the aggrieved land-owners had an opportunity to inspect the land plans and the other details and it is not permissible for them to make any grievance about the description of the land. In fact, the Supreme Court decision, cited supra, relied upon by the learned counsel for the petitioners, supports the case of the respondents rather the petitioners.
9.In Bangalore Jute Factory case, cited supra, a part of the land out of a bigger chunk of land was sought to be acquired under the National Highways Act. In that case the notification issued under section 3-A(1) of the Act, there was no reference to any plan nor any such plan was referred to in the pleadings and nothing was produced before the Court at the hearing....
10.In the case in hand, the impugned notification specifically refers the land plan and therefore, the argument of the learned counsel for the petitioners that there was non-compliance of Section 3-A(2) of the Act cannot be accepted."
(emphasis supplied)
19.A perusal of the facts before the Hon'ble Division Bench in the above case would show that there also the notification contained a similar statement with regard to the availability of land plans and other details for inspection. Thus, I am of the firm view that the above decision of the Hon'ble Division Bench squarely covers the case on hand especially when the Hon'ble Division Bench has considered and distinguished the Bangalore Jute Factory case which is relied on by the learned counsel for the petitioner in this case.
20.The other decision relied on by the learned counsel for the petitioner is reported in 2010(6) CTC 337, R.Natarajan v. Union of India, for the purpose of contending that the notification must contain relevant particulars for filing effective objections. A perusal of the above decision would show that the issue involved in that case is totally different one and not similar to the one on hand. In that case, it is seen that the objection raised by the land owner was rejected without any reason under Section 3C of the said Act. Thus, the Hon'ble Division Bench has held that the authority therein passed the order purely on the basis that the technical experts have already given their opinion and nothing is reflected from the order that the objections raised by the appellants therein were even considered or dealt with by the authority. Thus, the Hon'ble Division Bench found that there was total non application of mind while passing the order of rejection of the objection raised under section 3C(2) of the said Act.
21.It is not the case of the petitioner herein that the objections raised by them were not considered. In fact, when an order was passed on 31.05.2010 overruling the objection raised by the petitioner company, it is admitted by the petitioner that the same was challenged in W.P.No.14644 of 2010 and however, at the admission stage itself, they have withdrawn the writ petition with liberty to challenge the notification issued by the respondents. Now before me, only contention raised is that the notification does not contain the brief description of the land. Thus, in my considered view, the above decision of the Hon'ble Division Bench is also not applicable to the facts and circumstances of the present case.
22.The learned counsel appearing for the fifth respondent relied on 2006(5) CTC 634, The General Manager (Tech) and Project Director vs. Sridevi, the decision of the Hon'ble Division Bench, which I have already discussed supra. He further relied on the decision of a learned single Judge of this Court reported in 2010 (1) MLJ 901, V.Nandakumar vs. Union of India, wherein the learned single Judge has observed at paragraph No.13 as follows:
"13.A combined reading of the judgment referred to above will clearly establish a brief description of the property in the notification alone is sufficient. In the given case on hand in the schedule to the notification brief description of the land which is sought to be acquired has been clearly set out. The schedule which has been extracted above will amply prove that the particulars thereunder is sufficient to raise an objection for acquisition of the lands in question. Furthermore, as stated already, it is clearly set out in the notification that the land plans and other details of the land, which are necessary can be ascertained from the competent authority." (emphasis supplied)
23.A perusal of the above decision of the learned Single Judge would show that similar objection raised therein was rejected by holding that when the notification contains a brief description of the land and when it is clearly set out in the notification itself that the land plans and other details of the land can be ascertained from the competent authority, that itself is sufficient and it cannot be said that section 3A(2) of the Act was not followed by the competent authority.
24.Learned counsel for the fifth respondent further relied on the decision of the Apex Court reported in 1997(1) SCC 134, Ramniklal N.Bhutta and another v. State of Maharashtra and Others, wherein at paragraph No.10, the Apex Court has held as follows:
"10.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 infurtherance of interests of justice and not merely 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-a-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." (emphasis supplied)
25.The categorical observation of the Apex Court made in the above decision would show that the power under Article 226 in the matter like this has to be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. It is further pointed out therein that in the matter of land acquisition for public purposes, the courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 of the Constitution of India.
26.The learned counsel further relied on a decision of the Apex Court reported in 2011(8) MLJ 53, Union of India v. Dr.Kushala Shetty and Others, wherein at paragraph No.24, it is observed as follows:
"Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to malafides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained."
27.In the above decision, the Apex Court considered the importance of the national highways project and thus, observed that the courts are not at all equipped to decide upon the viability and feasibility of the particular project and the court can nullify the acquisition of land and in rarest of rare cases, the particular project, if it is found that the acquisition of land and the particular project are contrary to the mandate of law or tainted due to malafides.
28.In this case, the notification contained the brief description of the land. It also contained the information about the availability of cite plan for inspection. Thus, the notification was validly made and does not warrant any interference. Equally the consequential declaration under section 3D was also made by following due process of law and hence, the same is also valid. It is also to be noted that the petitioner has not utilised the opportunity of verifying the cite plan and land details available in the office when it is specifically stated in the notification itself. On the other hand, they sought for some details repeatedly by sending one communication after another. Even for the enquiry, the petitioner has not appeared and avoided the same on some reason or other. Therefore, it is very clear that the petitioner is interested in dragging the proceedings under one pretext or other. Nobody can dispute that the project is of national importance involving huge public money and stalling the project any further is not only against the public interest and also against the interest of the nation.
29.Thus, by considering all the above facts and circumstances and also considering the various case laws as discussed supra, I am of the view that the notification issued under section 3A(1) does not suffer any infirmity or illegality and consequently, the declaration made under section 3D is also validly made. Thus, I find no merits in these writ petitions. Accordingly, both the writ petitions are dismissed. The interim order already granted is vacated. Consequently, vacate injunction petitions in M.P.Nos.1 and 1 of 2012 are allowed and injunction petitions in M.P.Nos.2 and 2 of 2010 are dismissed. No costs.
.12.2013
Index :Yes/No
Internet:Yes/No
vri
To
1.The Union of India,
Rep. By its Secretary to the Ministry of
Road Transport and Highways,
Transport Bhavan,
NO.1, Parliament Road, New Delhi.
2.The Deputy Secretary,
Ministry of Road Transport & Highways,
Transport Bhavan,
No.1, Parliament Road,
New Delhi.
3.The Director,
Ministry of Road Transport & Highways
Transport Bhavan,
NO.1, Parliament Road,
New Delhi.
4.The Competent Authority and Special District
Revenue Officer (L.A), NH 47 & 67,
Door No.3, Savari Muthu Chettiar Lane,
Red Fields, Coimbatore 45.
5.The Project Director,
National Highways Authority of India,
Old No.28/1, New No.51/2, 50 feet road,
Krishnasamy Nagar, (Gem Hospital Backside),
Ramanathapuram, Coimbatore 641 045
K.RAVICHANDRABAABU,J.
Vri
Pre Delivery Common orders in
W.P.Nos.29508 and 29509 of 2010
06.12.2013