Madras High Court
Krishnaveni vs The Union Of India on 27 April, 2007
Author: A. Kulasekaran
Bench: A. Kulasekaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27/04/2007
CORAM
THE HONOURABLE MR. JUSTICE A. KULASEKARAN
W.P. No. 31283 of 2005
1. Krishnaveni
2. G.Bharanidharan
3. G.Hemamalini
4. G.Ashok Kumar
5. N.Ramasubramani
6. M/s. Sudharsan & Company
Dealers ~ Bharat Petroleum Corporation Ltd
Survey No.39/1A Annadhanapatti
and
Survey No.96/2A Kandampatti Village
at NH 7
Salem
rep. By its Managing Partner
R. Nandakumar
3/57 G
K.S.V. Nagar
Salem 4 ..Petitioners
Vs
1. The Union of India
rep. By The Secretary to Government
Ministry of Road Transport & Highways
Transport Bhavan
New Delhi
2. The National Highways Authority of India
by its Chairman
G 5 & 6
Sector 10
Dwarka
New Delhi 110 075
3. The General Manager (NS II)
The National Highways Authority of India
G 5 & 6
Sector 10
Dwarka
New Delhi 110 075
4. The Project Director & General Manager (Technical)
The National Highways Authority of India
"Sethuram"
Second Floor
No.14
Sundaresa Iyer Layout
Trichy Road
Coimbatore 641 018
5. Bharat Petroleum Corporation Ltd
rep. By The Territory Manager
Karur Attur and Kadappara Village
Erode Road
Athur Post
Karur 639 002
6. R.Veeramani
7. Cauvery Stone Impex Pvt Ltd
by its Managing Director
No.349
Circle Thottam
Near bypass
Salem 636 002 ..Respondents
Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus as stated therein.
For Petitioner : Mr. T.R. Mani, Senior Counsel
for Mr. T.M. Hariharan
For Respondents : Mr. P. Wilson
Assistant Solicitor General for RR1 to 4
Mr. K. Ethiraj for R5
Mrs. Nalini Chidambaram, Sr. Counsel
for M/s. Gupta & Ravi for RR6 & 7
ORDER
The petitioner has come forward with this writ petition praying for a Writ of Certiorarified Mandamus calling for the records of the respondents 1 to 4 in connection with the four laning of Salem Coimbatore Section of NH-47 from K.M. 1.60 to K.M. 53.00 (package 1) on Annuity Basis titled proposed inter-change at Kondalampatti and to quash the altered plan in Job No.C-622 (drawing No.DRG No.SCPLB/C-622/P1/RH/JN-02/REV) made therein and consequently to direct respondents 1 to 4 to adhere to the original scheme finalised and approved for the said work.
2. Mr. T.R. Mani, learned Senior counsel appearing for the petitioners submitted as follows:
The petitioners 1 to 5 are co-owners of the lands to an extent of (i) 18454 sq.ft., in Survey No.96/2A, Kandampatti/Pallapatti Village, Salem West (ii) 11546 sq.ft., in Survey No.39/1A, Annadhanapatti Village, Salem East and (iii) 5022 sq.ft., in Survey No.39/1A, Annadhanapatti Village, Salem East, measuring in all 35,022 sq.ft., which are located abutting NH-47 of Salem. The petitioners 1 to 5 have leased out the above said item Nos. (i) and (ii) of the properties to the 5th respondent/corporation under a registered lease deed dated 10.03.2004 for the purpose erecting petrol filling stations for a period of 30 years. The 6th petitioner was a dealer/licensee of the 5th respondent corporation, who has taken on lease the item No. (iii) mentioned above under a registered lease deed dated 20.08.2004 to construct a motel as required by the 5th respondent/corporation. The 5th respondent/corporation has also applied through the fourth respondent for issuance of No Objection Certificate for laying approach road for access to the retail outlet exactly at kilometer 203.727 to kilometer 203.776 in the Bangalore-Salem-Madurai Section of NH-7. Under proceedings dated 08.03.2004, the fourth respondent recommended to the third respondent to grant No Objection Certificate and the proposal forwarded by the fourth respondent was returned by the third respondent by his proceedings dated 30.06.2004 pointing out certain technical error in the proposal, hence, the 5th respondent re-submitted the proposal and thereafter, the proposal for issuance of No Objection Certificate for laying the approach road was forwarded by the fourth respondent on 17.08.2004. The fourth respondent again re-commended for issuance of No Objection Certificate. The fourth respondent, by his proceedings dated 10.03.2005 addressed to the 5th respondent/corporation has stated that the proposal for laying approach road could not be considered by the second respondent as the same is deficient on a few technical counts and as the proposal interferes with the four laning of NH-47, location of the outlet needs to be reviewed. Non-consideration of the application for No Objection Certificate for forming of access road on the ground that the same would interfere with the four laning of NH-47 is wholly unjustified since four laning has already been finalised by the respondents 1 to 4 and the proposed access road no way interferes with the four laning so finalised, which is evident from the proceedings of the District Magistrate-cum-District Revenue Officer dated 15.04.2004. The proposal for connecting NH-47 and NH7 has already been finalised and in the draft plan, the ramp road connecting NH-47 and NH7 was to be constructed behind the petroleum retail outlet of the 5th respondent corporation operated by the 6th petitioner. Much later, after the proposal for construction of the access road for the petroleum outlet had been recommended by the fourth respondent, a new plan has come to be prepared at the instance of certain vested interests namely 6th and 7th respondents. Under the altered plan, the proposed ramp road is to pass through the front side of the retail outlet facing NH-7 instead of at the rear. There is no need or justification for alteration of the original draft plan and in fact none is disclosed. The respondents 6 and 7 are politically well connected and at their bidding, the duly approved and finalised plan has been altered. The draft plan has been altered hurriedly which is evident from the fact that though the original plan was finalised after conducting necessary soil testing, water table testing and other required formalities, the alteration has now been proposed even without undertaking any of these tests. The procedure adopted is wholly arbitrary and whimsical and the respondents 1 to 4 ought not to be allowed to abdicate their duties and responsibilities with a view to please any vested interests, more so, when substantial public funds are to be invested in the project. The petitioners are seriously prejudiced by the second plan to re-locate the ramp between the national highway and the petroleum outlet. The averment that the petition is not maintainable as no notice under Section 3-A of National Highways Act, 1956 has been issued is unsustainable since the respondents 1 to 4 have altered the plan and are proceeding with the execution of the work and a feeble attempt is made to justify the alteration, which is vitiated by malafide and colourable exercise of power only to favour the respondents 6 and 7. When colourable exercise of power is under challenge in the present writ petition and the proposal for 3-A notification has been finalised, certainly the writ petition is maintainable. The averment that considering technical feasibility, economic viability, social and environmental issues, the consultants have proposed the alternative arrangement by shifting the location slightly towards South considering the techno-economic, social and environmental consideration avoiding junctions with existing roads and hillocks posing gradient problems, huge costs towards rock cutting, settlements of economically weaker sections and the greenery of the hillock are false. The business house of the 6th respondent in the concerned locality is Cauvery Stone Impact Private Limited, which name is also displayed in the factory, but the respondents 1 to 4 referred it as Gem Granite in the alternative plan. Erection of the pillars on the rock will be advantageous and would cost much less than digging the earth for laying foundation with concrete pillars. The averment that alteration is made to protect the economically weaker section is far from truth. The so-called economically weaker sections are encroachers of poromboke lands, who have put up pucca construction with RCC tiled roofs, which is disclosed in the plan itself. Poromboke lands are ironically left out solely with a view to serve the vested interests. The petroleum pump/HSD pump of the 6th petitioner has been commenced after complying with all the formalities and prayed for quashing of the impugned order.
3. In support of the above contention, the learned Senior counsel for the petitioners relied on the below mentioned decisions:
i) (Collector (Distt.Magistrate) Allahabad and another v. Raja Ram Jaiswal) AIR 1985 SC 1622 wherein the Honourable Supreme Court, in Para-26, held thus:
26. Where power is conferred to achieve a purpose it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose. And in this context in good faith means for legitimate reasons. Where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colourable exercise of power or fraud on power and the exercise of power is vitiated. If the power to acquire land is to be exercised, it must be exercised bona fide for the statutory purpose and for none other. If it is exercised for an extraneous, irrelevant or non-germane consideration, the acquiring authority can be charged with legal mala fides. In such a situation there is no question of any personal ill-will or motive. In Municipal Council of Sydney v. Campbell it was observed that irrelevant considerations on which power to acquire land is exercised, would vitiate compulsory purchase orders or scheme depending on them. In State of Punjab v. Gurdial Singh acquisition of land for constructing a grain market was challenged on the ground of legal mala fides....."
ii) (Express Newspapers (P) Ltd. v. Union of India) AIR 1986 SC 872 wherein in Para No.115, it was held thus:
115. It is somewhat strange that although definite allegations of mala fides on the part of the respondents particularly the Government for the day at the Centre were made with sufficient particulars and though the respondents had ample time to file their affidavits in reply, none of the respondents except Respondent 2, the Lt. Governor of Delhi and Respondent 5, Land & Development Officer has chosen to deny the allegations. The counter-affidavit of Respondent 2 purporting to be on behalf of all the respond ents is that the allegations made by the petitioners in paras 11, 12 and 13 are not relevant to the matter in issue. In C . S. Rowjee v. A.P. State Road Transport Corporation the Court in a matter arising out of the Motor Vehicles Act, 1939 where certain allegations against the Minister went uncontroverted, had occasion to administer a word of caution. Where mala fides are alleged, it is necessary that the person against whom such allegations are made should come forward with an answer refuting or denying such allegations. For otherwise such allegations remain unrebutted and the Court would in such a case be constrained to accept the allegations so remaining unrebutted and unanswered on the test of probability. That precisely is the position in the present case, in the absence of any counter-affidavit by any of the respondents. One should have thought that the Minister for Works & Housing should have sworn an affidavit accepting or denying the allegations made by the petitioners. At our instance, M.M. Mukherjee, Secretary, Ministry of Works & Housing has filed a supplementary affidavit. He avers that the impugned notice dated March 10, 1980 of re-entry upon forfeiture of lease issued by the Engineer Officer, Land & Development Office was on the basis of press reports i.e. reports of the press conference held by the Lt. Governor. Again, there is no attempt on the part of the Union of India, Ministry of Works & Housing to deny the allegations of mala fides on the part of the Government and its functionaries in issuing the impugned orders. On the contrary, he avers that Respondent 1 adopts the counter-affidavit filed by Respondent 2. It is not for the parties to say what is relevant or not. The matter is one for the Court to decide. There is nothing before us from which w e can say that the allegations in paras 11, 12 and 13 of the petition made by the petitioners are not well-founded. Mala Fides on the part of the Government in power or its functionaries would be sufficient to invalidate the impugned notices. Fraud on power vitiates the impugned orders if they were not exercised bona fide for the purpose for which the power was conferred."
iii) (Fasih Chaudhary v. D.G., Doordarshan) AIR 1989 SC 157 wherein in Para No.6, it was held thus:
"6. While, as mentioned hereinbefore, fair play in action in matters like the present one is an essential requirement, similarly, however, free play in the joints is also a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere as the present one. Judged from that standpoint of view, though all the proposals might not have been considered strictly in accordance with order of precedence, it appears that these were considered fairly, reasonably, objectively and without any malice or ill-will."
iv) (State of Bihar v. Subhash Singh) AIR 1997 SC 1390 wherein in Para No.3, it was held thus:
"3 . . . . . It is now settled legal position that the bureaucracy is also accountable for the acts done in accordance with the rules when judicial review is called to be exercised by the courts. The hierarchical responsibility for the decision is their in-built discipline. But the head of the Department/designated officer is ultimately responsible and accountable to the court for the result of the action done or decision taken. Despite this, if there is any special circumstance absolving him of the accountability or if someone else is responsible for the action, he needs to bring them to the notice of the court so that appropriate procedure is adopted and action taken. The controlling officer holds each of them responsible at the pain of disciplinary action. The object thereby is to ensure compliance of the rule of law.
v) (Tandon Bros. v. State of W.B.,) AIR 2001 SC 1866 wherein in Para No.35, it was held thus:
35 The word supersession has a definite connotation in the English language and has also its due jurisprudential effect. The Governor of the State issues a notification, obviously upon consideration of all the relevant materials, that notification stands superseded by another Governor of the State without however, ascribing any reason whatsoever as noticed earlier, formation of opinion ought to be with reasons and not dehors the same!! What was the reason for this change apparently there is no answer;
.. Governmental action must be based on utmost good faith, belief and ought to be supported with reason on the basis of the state of law if the action is otherwise or runs counter to the same the action cannot but be ascribed to be mala fide and it would be a plain exercise of judicial power to countenance such action and set the same aside for the purpose of equity, good conscience and justice. Justice of the situation demands action clothed with bona fide reason and necessities of the situation in accordance with the law. But if the same runs counter, law courts would not be in a position to countenance the same."
vi) (Chandra Singh v. State of Rajasthan) (2003) 6 SCC 545 wherein in Para No.37, it was held thus:
37. This takes us to the question as to whether the action of the High Court in making the assessment of the performance of the appellants prior to 31-3-1999 stands the scrutiny of Rule 53 of the Rajasthan Civil Services (Pension) Rules, 1996. In a given case, the said rule may be taken recourse to but the High Court never took any stand that its action was justified thereunder. Ex facie, the said rule is not applicable inasmuch as it has never been the contention of the respondents that the impugned order had been passed in public interest or other prerequisite therefor, namely, giving of three months notice in writing to the government servant before the date on which he is required to retire in public interest or three months pay and allowances in lieu thereof, had been complied with. Compliance with prerequisites of such a rule, it is well-settled, is mandatory and not directory. Such a plea has expressly been negatived by this Court. (See Rajat Baran Roy case 2 , paras 13 to 16.) It is fairly well settled that the legality or otherwise of an order passed by a statutory authority must be judged on the face thereof as the reasons contained therein cannot be supplemented by an affidavit. (See Mohinder Singh Gill v. Chief Election Commr.) It may be true that mentioning of a wrong provision or omission to mention the correct provision would not invalidate an order so long as the power exists under any provision of law, as was submitted by Mr Rao. But the said principles cannot be applied in the instant case as the said provisions operate in two different fields requiring compliance with different prerequisites. It will bear repetition to state that in terms of Rule 53 of the Pension Rules, an order for compulsory retirement can be passe d only in the event the same is in public interest and/or three months notice or three months pay in lieu thereof had been given. Neither of the aforementioned conditions had been complied with."
4. Mr. Wilson, learned Assistant Solicitor General appearing for the respondents 1 to 4 submitted as follows;
The writ petition is not maintainable since the acquisition proceedings are not initiated. Without prejudice to the respondents 1 to 4, if at all, the petitioners can file their objections, if any, only after notice under Section 3-A of the National Highways Act is issued. The notice under Section 3-A of the said Act is not finalised by the Central Government as this Court has granted interim order. Before any project is processed, National Highways Authority of India prepare plans for the purpose of identifying the area in which the acquisition can be made, hence, their consultant namely M/s. Span Consultants Private Limited, New Delhi was appointed and they have also submitted their draft detail project report, which contains interalia a plan of the proposed interchange at Kondalampatti forming part of the four laning project from Salem to Coimbatore. On 14.12.2004, the alignment of interchange at Kondalampatti, including road over bridge (ROB) was inspected by the Chief Manager (NS), NHAI, New Delhi along with the Project Director, NHAI, Coimbatore and Manager (Tech.,) NHAI, Salem and representatives of the Consultants in which certain features namely hillock with existing roads and hutments of economically weaker sections have come to the notice and it was advised to explore suitable arrangement for interchange. Accordingly, the consultants have proposed an alternative arrangement by shifting the location slightly towards the South to avoid junctions with existing roads on the hillock, which poses gradient problems, huge cost of rock cutting, the settlements of economically weaker sections and the greenery of the hillock. As a result, one of the arms of National Highways carrying traffic from Coimbatore to Salem falls in front of the retail outlet of the petitioners, which is unavoidable and considering several site constraints the present plan was adopted for the purpose of calling for offers/bids from BOT entrepreneur. The contention of the petitioner that application for No Objection Certificate for access to the retail outlet was made only after the proposal for four laning of NH-47 has been finalised is incorrect. When the fourth respondent recommended on 08.03.2004 to the third respondent, four laning of NH-47 was in a preliminary stage. The fifth respondent has given an standard undertaking that necessary alterations, including complete removal/shifting of approach roads will be done at their own costs, if required for development of national highways. The proposal forwarded by the fourth respondent to the third respondent cannot be treated as a final clearance from the national highways point of view, unless the same is approved by the Ministry of Shipping, Road Transport & Highways and the licence deed is signed by a Chief Engineer of the Ministry. The petitioners, without waiting for approval from the said authority had commenced the operation of the petrol bunk, which is contrary to the above said requirement. However, whatever assets like land and other structures existing on the date of notification under Section 3A of the Act will be suitably compensated. The work of four laning project including construction of 4 lane new bypass at Kondalampatti involving a major interchange cum ROB has already been awarded to a BOT Concessionaire, who had signed an agreement with the authorities of the National Highways, but could not execute the work due to the interim order granted by this Court and prayed for dismissal of the writ petition. The allegations of malafide are vague and not sustainable. The draft plan as well as final plan disclose existence of the 6th petitioner company, which is evident from both the plan enclosed in the typed set of papers. The petitioners bent upon fishing out reasons to claim malafide. The question of colourable exercise or legitimate expectation, as alleged by the petitioners, does not arise in this case. The averment that shifting of the location is to benefit the 6th and 7th respondents are false and baseless. There is no legal right to lay a claim based on the draft plan or the final plan until the same is notified. The petitioners property are required to be acquired, assuming without admitting that both the plans are executed. It is the usual practice of the National Highways Authorities of India to draw a draft detailed project report and only after inspection along with the technical people, subject to any changes, detailed finalised plan will be prepared by the consultants and forwarded by the Project Director with the recommendations to National Highways Authorities of India, Head Quarters,New Delhi and the same required to be approved by the committee consisting of higher level technical officers. Even then, National Highways Authorities of India is empowered to change the plan when there are technical/economic necessities. In the finalised plan, two changes were introduced namely interchange of Kandampatti junction wherein the interchange, which was originally on the Southern side has been shifted to the Northern side for technical reasons. The technical report of M/s. Span Consultants Private Limited discloses that all possibilities have been explored and the present original plan has been accepted. The second change that was suggested is to lay ramp road in NH-47 designed for 100km per hour speed and the requirements are clear sighting of distance for vision to satisfy IRC 92-1985 specification. Laying of pillars on a rocky area is not so easy and the project cost would increase manifold, besides posing threats to its stability. The petitioners were never assured of any type of promise as to acquisition of their lands by National Highways Authorities of India. The draft plan does not confer any right to the petitioners as they were subject to change until approval is given by National Highways Authorities of India, New Delhi. The fifth respondent, having applied for No Objection Certificate ought to have waited till it is granted by the Ministry and only thereafter it ought to have allowed the 6th petitioner to proceed with erection of structure for petrol bunk, but even before obtaining No Objection Certificate from the Ministry, through National Highways Authorities of India, the 5th respondent has highhandedly allowed the 6th petitioner to erect the petrol bunk and operate, hence, the erection of petrol bunk is illegal. Consequent to the stay granted by this Court, no further steps for acquisition have been taken by the respondents 1 to 4 in so far as Annadhanapatti Village is concerned where the interchange and ramp roads are located, but in the remaining part of Salem and Namakkal Road, acquisition proceedings have been started, hence, in the interest of public, the writ petition has to be dismissed with exemplary costs.
5. In support of this contention, the learned Assistant Solicitor General appearing for the respondents 1 to 4, relied on the below mentioned decisions:
i) (Dr. J.N. Banavalikar v. Municipal Corpn. of Delhi and another) 1995 Supp (4) SCC 89 wherein inPara No.21, it was held thus:-
21. In the facts and circumstances of this appeal, it is not possible to hold that the impugned action in removing the appellant and appointing Dr Patnaik is unfair or unjust or irrational or arbitrary or tainted with any mala fide intention. The contention of the appellant that in order to accommodate a junior doctor as Medical Superintendent in I.D. Hospital, Dr Patnaik had been moved out from the said hospital to replace the appellant as Medical Superintendent of RBTB Hospital, is not only vague but lacks in particulars forming the foundation of such contention. Further, in the absence of impleadment of the junior doctor who is alleged to have been favoured by the course of action leading to removal of the appellant and the person who had allegedly passed mala fide order in order to favour such junior doctor, any contention of mala fide action in fact i.e. malice in fact should not be countenanced by the court. This appeal therefore, fails and is dismissed without any order as to costs.
ii) (Union of India and another v. Ashutosh Kumar Srivastava and another) (2002) 1 SCC 188 wherein in Para No.7, it was held thus:-
7. In the first place, the Tribunal should have given a definite finding as to whether Shri Sanjai Mittal was related to Respondent 2 or not and, if that ground failed, it should not have allowed Respondent 1 to change his stance that somehow and in some other manner Shri Sanjai Mittal is connected with Respondent 2. The Tribunal should not have proceeded on line proving the moral indicated in one of Aesops Fables of the lamb and the wolf when the complaint was that the stream was being polluted by the l amb and if not by it, by any of its forefathers. The approach of the Tribunal in this regard is by no reason good enough to chastise the said Respondent 2 and condemn the proceedings conducted not only by him but other officers who are of equivalent rank. There is always a presumption in favour of administration that it exercises powers in good faith and for public benefit. The burden is on the individual to produce sufficient material to suggest of the mala fides of the authority concerned and it is not easy to discharge the same.
iii) (Delhi Development Authority and another v. UEE Electricals Engg. (P) Ltd., and another) (2004) 11 SCC 213 wherein in Para-11 and 12, it was held thus:
"11. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is illegality, the second irrationality and the third procedural impropriety. These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service(1984) 3 All ER 935 (commonly known as CCSU case ).
12. Courts are slow to interfere in matters relating to administrative functions unless decision is tainted by any vulnerability such as lack of fairness in procedure, illegality and irrationality. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient."
iv) (Syed T.A. Naqshbandi and others v. State of J&K and others) (2003) 9 SCC 592 wherein in Para-7 it was held thus:
"7...... As has often been reiterated by this Court, judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision itself, as such. Critical or independent analysis or appraisal of the materials by the courts exercising powers of judicial review unlike the case of an appellate court, would neither be permissible nor conducive to the interests of either the officers concerned or the system and institutions of administration of justice with which we are concerned in this case, by going into the correctness as such of ACRs or the assessment made by the Committee and approval accorded by the Full Court of the High Court. "
v) (Union of India and another v. International Trading Co., and another) (2003) 5 SCC 437 wherein in Para No. 12, it was held thus:
"12. Doctrines of promissory estoppel and legitimate expectation cannot come in the way of public interest. Indisputably, public interest has to prevail over private interest. The case at hand shows that a conscious policy decision has been taken and there is no statutory compulsion to act contrary. In that context, it cannot be said that the respondents have acquired any right for renewal. The High Court was not justified in observing that the policy decision was contrary to statute and for that reason direction for consideration of the application for renewal was necessary. Had the High Court not recorded any finding on the merits of respective stands, direction for consideration in accordance with law would have been proper and there would not have been any difficulty in accepting the plea of the learned counsel for the respondents. But having practically foreclosed any consideration by the findings recorded, consideration of the application would have been a mere formality and grant of renewal would have been the inevitable result, though it may be against the policy decision. That renders the High Court judgment indefensible.
vi) (National Buildings Construction Corpn. v. S. Raghunathan) 1998) 7 SCC 66 wherein in Para Nos. 20 and 21, it was held thus:
"20. Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service1985 AC 374 laid down that the doctrine of legitimate expectation can be invoked if the decision which is challenged in the court has some person aggrieved either (a) by altering rights or obligations of that person which are enforceable by or against him in private law ; or (b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that it should not be withdrawn.
21. The Indian scenario in the field of legitimate expectation is not different. In fact, this Court, in several of its decisions, has explained the doctrine in no uncertain terms."
vii) (P.T.R. Exports (Madras) (P) Ltd. v. Union of India) (1996) 5 SCC 268 wherein in Para Nos. 3 and 5, it was held thus:
"3..... The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The court leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is a settled law that the court gives a large leeway to the executive and the legislature. Granting licences for import or export is by executive or legislative policy. Government would take diverse factors for formulating the policy for import or export of the goods granting relatively greater priorities to various items in the overall larger interest of the economy of the country. It is, therefore, by exercise of the power given to the executive or as the case may be, the legislature is at liberty to evolve such policies.
5. It would, therefore, be clear that grant of licence depends upon the policy prevailing as on the date of the grant of the licence. The court, therefore, would not bind the Government with a policy which was existing on the date of application as per previous policy....."
viii) (Bannari Amman Sugars Ltd. v. Commercial Tax Officer and others) (2005) 1 SCC 625 wherein in Para No. 19, it was held thus:
"19. In order to invoke the doctrine of promissory estoppel clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and bald expressions without any supporting material to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. The courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity must for ever be present in the mind of the court. "
ix) (Chief Conservator of Forests, Government of A.P. v. Collector and others) (2003) 3 SCC 472 wherein it was held in Para Nos. 14 thus:
"14....... It is neither appropriate nor permissible for two departments of a State or the Union of India to fight litigation in a court of law. Indeed, such a course cannot but be detrimental to the public interest as it also entails avoidable wastage of public money and time. Various departments of the Government are its limbs and, therefore, they must act in coordination and not in confrontation. Filing of a writ petition by one department against the other by invoking the extraordinary jurisdiction of the High Court is not only against the propriety and polity as it smacks of indiscipline but is also contrary to the basic concept of law which requires that for suing or being sued, there must be either a natural or a juristic person......"
x) (Union of India and others v. Godfrey Philips India Ltd.,) (1985) 4 SCC 369 wherein in Para-13 it was held thus:
"13...... We may also point out that the doctrine of promissory estoppel being an equitable doctrine, it must yield when the equity so requires; if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the Court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it. This aspect has been dealt with fully in Motilal Sugar Mills case 3 and we find ourselves wholly in agreement with what has been said in that decision on this point."
xi) (Ramniklal N. Bhutta and another v. State of Maharashtra and others) (1997) 1 SCC 134 wherein in Para No.10 it was held thus:
10...... 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 an d 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-?is the private interest while exercising the power under Article 226 indeed any of their discretionary powe rs. 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."
xii) (MD, U.P. Land Development Corpn. and another v. Amar Singh and others) (2003) 5 SCC 388 wherein in Para No. 9, it was held thus:
"9...... The internal note and order of the Corporation, which is made the basis for the claim that twenty-five posts were available on a regular basis, is itself not correct. At this stage we may observe that the internal note and order dated 2-11-1990 was prepared by the Director of the Corporation for his own purpose, but strangely enough a copy of the same was produced by the respondents in the writ petition. We fail to understand how the copy of this internal note and order came into the hands of the respondents. Apart from the fact whether such an internal note itself could give any right to the respondents, the very reading of the same does not give an impression that it is indicated to create twenty-five posts on a regular basis....."
6. Mr. Ethiraj, learned counsel appearing for the fifth respondent, relying on the counter affidavit, submitted as follows:
The fifth respondent has obtained No Objection Certificate for setting up petroleum retail outlet on 15.04.2004 as contemplated under Rule 144 (1) of Petroleum Rules from the District Revenue Officer, who is vested with the powers for issuing the same; that in Para-3 of the said No Objection Certificate, it was stated that the four laning of the above mentioned stretch has been completed and that the National Highways Authority of India has no objection to instal the retail outlet. Thereafter, the fifth respondent has obtained approval from Chief Town Planner, Superintendent of Police, Commissioner of Municipalities, Divisional Fire Officer and spent substantial amount for infrastructure facilities and commenced their operation in the month of May 2004. On 08.04.2004, the fifth respondent had submitted an application for issuance of licence by the Highways Department, which was returned for certain compliances and the same was re-submitted on 30.07.2004 and after perusal of the same, the National Highways Authority, Salem have recommended for issuance of licence by their letter dated 17.08.2004, till then, the proposed plan for the ramp road connecting NH7 and NH-47 was behind the retail outlet of the fifth respondent. It is the usual practice to commence the retail outlet operation immediately after obtaining No Objection Certificate issued by the District Authority. The proposed change of ramp road connecting NH7 and NH47 over the retail outlet of the 5th respondent would result in substantial loss of the public funds, besides rendering more than 20 persons jobless. On the other hand, if the earlier proposal is continued, the land to be utilised for laying their ramp road is only a vacant land, which can be acquired after paying compensation to the land owners and there shall be no necessity for removal of the existing superstructure of the fifth respondent. It is also learnt that the owners of the vacant land, wherein the original plan for ramp was drawn are ready to offer their lands. Further, the original proposal of the ramp road is more or less a straight road as per the international standard for a comfort driving for the motoring public but the revised proposal is a road with curvature and will cause inconvenience tomotoring public and prayed for directing the respondents 1 to 4 to proceed as per the original plan.
7. Mrs. Nalini Chidambaram, learned Senior counsel appearing for the respondents 6 and 7 argued that the respondents 6 and 7 are unnecessary parties to the writ petition. The allegations made against the respondents 6 and 7 are baseless and defamatory. The respondents 6 and 7 are not aware of the proposed revised plan and the allegation that it has been changed to suit their convenience is totally false. The petitioners have suppressed the fact that the valuable frontage lands belonging to the respondents 6 and 7 has also been acquired for formation of the four laning, hence, the question of favouring the respondents 6 and 7 does not arise and prayed for dismissal of the writ petitions as against the respondents 6 and 7 on the ground of misjoinder of parties. The learned Senior counsel for the respondents 6 and 7 also relied on the Order dated 23.02.2007 passed by a Division Bench of this Court in WA Nos. 259 and 260 of 2007 and prayed for dismissal of the writ petition.
8. This Court carefully considered the argument of the learned counsel on both sides and also perused the records produced by them. The case of the petitioners is that the fifth respondent has obtained necessary No Objection Certificate dated 15.04.2004 from the Additional District Magistrate and District Revenue Officer, Salem, as required under Rule 144 (1) of The Petroleum Rules, 2002. It is stated by the petitioners that to have access from NH7, the fifth respondent has also applied to the fourth respondent for issuance of No Objection Certificate for formation of the approach road connecting NH7 and the property where the petrol bunk was located at Kilometer 203.727 to kilometer No.203.776, at that time the proposal for four laning has been completed following the alleged first plan. To say that the said proposal is completed, the petitioners relied on the intra-departmental proceedings dated 19.02.4004 and 08.03.2004 of the Manager, Technical Office of the Project Director and General Manager (Technical), National Highways Authority of India, Salem. Indeed, in and by the said proceedings, the said authority only recommended to the third respondent for grant of No Objection Certificate for providing the approach road. Ultimately, the fourth respondent in his letter dated 10.03.2005 informed the fifth respondent that the respondents 2 and 3 have declined No Objection Certificate as the proposal interferes with four laning of NH7 and requested to ensure Para 4 (i) of the Licence for the use of National Highways land of the circular dated 25.09.2003 issued by the first respondent, which is enclosed in Page No.12 of the Typed set of papers and the same is extracted below:
" 4 (i) That the licensee/licensees shall within three months from the date of receipt of the permission, but without interfering in any way with the highways traffic, complete the construction of the approach road (including deceleration/acceleration lanes) and shall make provision for drainage, signs and markings at his own cost and to the full satisfaction of the Executive Engineer/Divisional Engineer in-charge/Project Director in-charge of the National Highway according to the approved drawings and specifications. The said approach road shall not be brought into use after its completion until the Executive Engineer/Divisional Engineer/Project Director, Government/NHAI gives a completion certificate after satisfying himself that it has been completed as per the sanctioned drawings and specifications. The Fuel station would be energized by the concerned oil company only after completion certificate has been issued by the Highway Authority. "
9. The learned Assistant Solicitor General appearing for the respondents 1 to 4 relied on Clause 10.6 and 10.9 of norms for access for fuel station issued by the first respondent Ministry dated 25.09.2003 and submitted that without No Objection Certificate/Completion Certificate or approval from the Ministry or contrary to the license deed, the oil company would not be allowed to energise the fuel station. Clause 10.6 and 10.9 runs as follows:
"10.6. The 'No Objection Certificate' by the licensing Authority through their field units, would be issued and construction permitted only after the necessary approval has been given by Ministry and license deed duly signed and delivered.
10.9 Oil companies/owner shall be responsible for the construction and maintenance of deacleration/acceleration lanes, service roads, channelisers, drainage arrangement, signs and markings in accordance with the approved layout and specifications conforming to these norms, at his own cost. On completion of the construction in accordance with checklist and conforming to the approvals, a Completion Certificate would be issued by the field unit of NHAI/PWD/BRO/or any other agency (as the case may be). The concerned Oil Company would be allowed to energise the fuel station only after the issue of such a certificate".
10. It is also relevant to mentin that No Objection Certificate granted by any other licensing authority including the Additional District Magistrate cum District Revenue Officer is not binding on the highways authority, as evidenced in the said intra-departmental proceedings dated 19.02.2004 of the Project Director and General Manager (Tech) Salem. The No Objection Certificate granted dated 15.04.2004 by the Additional District Magistrate cum District Revenue Officer is subject to obtaining of the approval from National Highways Authority of India, which is evident from para-3 of the said proceedings. The letter dated 30.06.2004 of the third respondent, which is also intra-departmental proceedings addressed to the fourth respondent also speak about the mandatory requirement of the approval by the National Highways Ministry.
11. The fourth respondent in its communication dated 10.03.2005 addressed to the fifth respondent categorically stated that "the proposal of erecting petrol bunk interferes with the four laning of NH-47, hence, the location of the outlet needs to be reviewed." Thereafter, the 6th petitioner has sent a representation dated 22.03.2005 to the first respondent as well as to the Minister of Road and Surface Transport, New Delhi praying for re-considering their request for construction of ramp road behind the retail outlet rather than constructing it in front of their retail outlet. Even in the said representation, there is no whisper about malafide or the alleged favouritism towards the respondents 6 and 7. In any event, the said communication is not challenged by the fifth respondent or the sixth petitioner.
12. The fact remains that the fifth respondent, without obtaining No Objection Certificate/completion certificate from the National Highways Authority of India erected petrol bunk and energised it and appointed the sixth petitioner as dealer.
13. It is contended by the petitioners that originally, a plan has been finalised for laying the ramp road behind the retail outlet of the fifth respondent corporation, later, an alternative plan was introduced at the instance of the respondents 6 and 7, by which the ramp road was proposed to pass through in front of their petroleum outlet instead of at the rear; that the respondents 6 and 7 are persons of great influence with high political connection in whose land the 7th respondent granite company is situated; that when power is exercised for extraneous or irrelevant consideration, it would amount to legal malafide and colourable exercise of power and the said elements are apparent in this case. In support of this contention, the learned Senior counsel for the petitioners relied on the decisions of the Honourable Supreme Court reported in (i) (Collector (Distt.Magistrate) Allahabad and another v. Raja Ram Jaiswal) AIR 1985 SC 1622 (ii) (Express Newspapers (P) Ltd. v. Union of India) AIR 1986 SC 872 (iii) (Fasih Chaudhary v. D.G., Doordarshan) AIR 1989 SC 157. It is for the party alleging malafide or bias to establish that element. Even in cases not involving malafide, it is the matter of common sense the petitioner has to place necessary facts before the Court in support of his case. Followed (Governing Body of Dayanand Anglo Vedic College vs. Padmanabha Padhy and others) AIR 1988 SC 612.
In order to establish malafide, it is not necessary to specifically name a particular person or an officer, who is responsible for the official act, it would be intolerable burden of proof even in case where there is a just claim for the petitioner. Followed (National Textile Corporation (SM) Ltd vs. Associated Building Co Ltd and others) 1995 Supp 4 SCC 197.
14. The said allegation is denied by the respondents 1 to 4 by stating that it is the usual practice of the National Highways Authorities of India to draw a draft plan cum detailed project report and only after inspection along with the technical people, subject to any changes, a detailed finalised plan be prepared by the consultants and forwarded by the Project Director with recommendations to National Highways Authorities of India, Head Quarters,New Delhi and the same required to be approved by the committee consisting of higher level technical officers; that even then, there are every possibilities for the National Highways Authorities of India to change the plan if there are technical/economic necessities. In any event, the petitioners lands are needed under both the plans. The respondents 6 and 7 in their counter stated that the highways authority likely to acquire about 40000 sq.ft., of their lands facing the highways.
15. Now it has to be considered as to whether there is any element of malafide or colourable exercise of power by the respondents 1 to 4 is involved. The case of the respondents 1 to 4 is that on 14.12.2004, the alignment of interchange at Kondalampatti, including road over bridge (ROB) was inspected by the Chief Manager (NS), NHAI, New Delhi along with the Project Director, NHAI, Coimbatore and Manager (Tech.,) NHAI, Salem and representatives of the Consultants in which certain features namely hillock with existing roads and hutments of economically weaker sections have come to the notice and it was advised to explore suitable arrangement for interchange and accordingly, the consultants have proposed an alternative arrangement by shifting the location slightly towards the South to avoid junctions with existing roads on the hillock, as laying of pillars on a rocky area is not so easy and project cost would increase manifold, besides it poses gradient problems and threats to stability. As a result, one of the arms of National Highways carrying traffic from Coimbatore to Salem falls in front of the retail outlet of the petitioners, which is unavoidable and considering several site constraints the present finalised plan was adopted. It is further stated that in the finalised plan, two changes were introduced namely interchange of Kandampatti junction wherein the interchange, which was originally on the Southern side has been shifted to the Northern side for technical reasons. The second change that was suggested for laying ramp road in NH-47 is it was designed in such a way for 100 kilometer per hour keeping in mind clear sight of distance for vision as per IRC 92-1985 specification.
16. The said reasons assigned by the respondents 1 to 4 show that they have taken due care and attention taking into consideration of several factors and keeping in mind the public interest, hence, the averment that the respondents 1 to 4 acted with malafide is without any substance.
17. The petitioners canvassed the pleas of promissory estoppel and legitimate expectation. It is averred by the petitioners that originally the alleged first plan was accepted by respondents 1 to 4, following the same, the petrol bunk and motel were established, later, the second plan was introduced. I do not find any promise made by the respondents 1 to 4 or the petitioners have acted on the promise and altered their position. The petitioners cannot expect that National Highways Authority of India grant No Objection Certificate to have access from the national highway to the petrol bunk automatically following licence or No Objection Certificate granted by other authorities. To have access from National Highway, permission of National Highways Authority of India is required under Section 28 and 29 of The Control of National Highways (Land and Traffic) Act, 2002 which is not obtained by the petitioners. Moreover, Para 4 (i) of License deed contemplates that within three months from the date of receipt of the permission, complete the construction of approach road and fuel station would be energised only after completion certificate is issued by the National Highways Authority of India. The said conditions were violated by the fifth respondent and sixth petitioner as well. The petitioners indeed unilaterally without obtaining No Objection Certificate or permission from National Highways Authority of India erected the petrol bunk and energised it. The person seeking to invoke the doctrine of legitimate expectation must be aggrieved and should have altered his position acting upon the States action/inaction. Legitimate expectation has to be determined keeping in view larger public interest and not according to claimant's perception. On facts, the plea of doctrine of legitimate expectation canvassed by the petitioners are liable to be rejected. In this context, it is useful to refer to the decision reported in (National Buildings Construction Corpn. v. S. Raghunathan) (1998) 7 SCC 66 mentioned supra.
18. In order to invoke the doctrine of promissory estoppel, clear, sound and positive foundation must be laid in the writ petition by the party. While invoking the said doctrine supporting material to the effect to be placed. The Court is bound to consider all aspects, including the result sought to be achieved and the public good at large. The facts discussed above disclose the petitioners disregards of law without obtaining permission from National Highways Authority of India erected petrol bunk and energised it. Moreover, the finalised plan was rightly adopted by National Highways Authority of India for public interest at large, hence, the said ground also rejected. Followed (Bannari Amman Sugars Ltd. v. Commercial Tax Officer and others) (2005) 1 SCC 625
19. The petitioners have made certain allegations against the respondents 6 and 7, hence, they are necessary parties to this writ petitions. The respondents 6 and 7 also filed their counter affidavits denying the allegations of malafide. Indeed, in the counter affidavit, they have categorically stated that their lands to an extent of 40000 sq.ft., facing highway is likely to be acquired by the respondents pursuant to the finalised plan. As this Court has already found that the interchange alterations is necessiated and valid, the submission of the respondents 1 to 4 and the respondents 6 and 7 that only for the purpose of filing the writ petition, the respondents 6 and 7 were impleaded cannot be ignored.
20. The respondents 1 to 4 challenged the locus standi of the petitioners in filing the writ petition on the ground that there is no privity of contract between them. The right to challenge may arise, if any, only after acquisition proceedings is initiated against the property of the petitioners and the petitioners cannot espouse the cause of the fifth respondent. The fifth respondent cannot indulge in shadow fight by setting up the petitioners to file this writ petition and such conduct of the fifth respondent is not legally permissible as held by the Honourable Supreme Court in (Chief Conservator of Forests, Government of A.P. v. Collector and others) (2003) 3 SCC 472. The intra-departmental communication relied on by the petitioners, are not addressed to them at all, besides that the said proceedings do not confer any right on them. The petitioners cannot dictate terms to the National Highways Authority of India to change the plan to suit their convenience. The finalised plan is in accordance with the IRC specification and also other technical factors. It is the usual practice of the National Highways Authority of India to draw draft detailed project report and only after inspection, along with technical people, subject to any changes, detailed finalised plan will be prepared by the consultants, that too subject to the approval of the committee consisting of higher level technical officers, even then, the National Highways Authority of India is empowered to change their plan when there are technical and economic necessities, hence, the writ petition filed by the petitioners is prematured, besides, they have no locus standi. It was replied by the petitioners that after finalising the plan, certainly, the National Highways Authority of India, with the assistance of the acquisition body proceed against their lands, hence, they are entitled to challenge the plan itself and accordingly it is challenged in this writ petition.
21. As rightly pointed out by the learned Assistant Solicitor General appearing for the respondents 1 to 4, the plan now adopted is subject to scrutiny of the committee consisting of higher level technical officers and also final decision of National Highways Authority of India. The proceedings of National Highways Authority of India relied on by the petitioners is nothing but intra-departmental communication, would not confer any right to them. A reading of the said intra-departmental proceedings show that the petitioners were not given any No Objection Certificate by the National Highways Authority of India. The said documents and the contentions raised on both sides can go to show that no objection is pre-requisite before erection of petrol bunk or atleast prior to energising the same, followed (MD, U.P. Land Development Corpn. and another v. Amar Singh and others) (2003) 5 SCC 388.
22. So far as the argument that pursuant to the impugned plan every possibility of acquiring the lands of the petitioners and foreseen the same, the writ petition is filed in advance is untenable at this stage for the reason that it is subject to scrutiny by National Highways Authority of India.
rsh To
1. The Secretary to Government The Union of India Ministry of Road Transport & Highways Transport Bhavan New Delhi
2. The Chairman The National Highways Authority of India G 5 & 6 Sector 10 Dwarka New Delhi 110 075
3. The General Manager (NS II) The National Highways Authority of India G 5 & 6 Sector 10 Dwarka New Delhi 110 075
4. The Project Director & General Manager (Technical) The National Highways Authority of India "Sethuram"
Second Floor No.14 Sundaresa Iyer Layout Trichy Road Coimbatore 641 018
5. The Territory Manager Bharat Petroleum Corporation Ltd Karur Attur and Kadappara Village Erode Road Athur Post Karur 639 002 [PRV/10406]