Gujarat High Court
Mansukhbhai vs National on 29 December, 2011
Author: V. M. Sahai
Bench: V. M. Sahai
Gujarat High Court Case Information System
Print
SCA/10826/2011 48/ 48 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10826 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE A.J. DESAI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To
be referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ? YES
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? YES
5
Whether
it is to be circulated to the civil judge ?NO
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MANSUKHBHAI
KALYANBHAI CHOVATIYA & ORS
Versus
NATIONAL
HIGHWAY AUTHORITY & ORS
=========================================
Appearance :
MR
MITUL K SHELAT assisted by Ms. Vacha Desai for Petitioners
MR
MIHIR JOSHI SR. ADVOCATE assisted by Mr. NARENDRAKHARE for
Respondents No. 1 to 3
MR N.J. SHAH ASST. GOVT PLEADER for
Respondent No. 4
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE A.J. DESAI
Date
:29 /12/2011
CAV
JUDGMENT
(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 By way of the present writ petition under Articles 14 and 226 of the Constitution of India, group of residents of Village Saraghvada of Taluka and District - Junagadh, whose lands are under acquisition, have challenged the action of the respondents of dropping the original proposal of constructing/widening of existing 2 lane National Highway 8D to 4 lane divided carriageway and changing the alignment of the said bypass on various grounds. Petitioners have also challenged the legality, validity and propriety of action of respondents of issuing Notification dated 19.10.2010 under Section 3A of the National Highway Act, 1956. In addition to these main reliefs, the petitioners have challenged the order dated 14th July, 2011 passed under Section 3C(2) of the Act, by which the objections raised by the petitioners under Section 3C of the National Highways Act, 1956 were turned down by the Land Acquisition Officer and have further prayed to direct the respondents to drop the acquisition proceedings.
2 By an Order dated 18.8.2011, this Court issued Notice to the respondents and called for to reply the petition. At the time of issuing notice, by way of interim relief, the Court directed the respondents not to publish any further Notifications under the provisions of the National Highways Act, 1956 and the same is extended time and again and still it is in operation.
3 With the consent of the Lawyers appearing for the respective parties, the matter has been heard for final disposal at the admission stage. Hence RULE.
4 Learned Advocate Mr. Narendra Khare waives service of notice of Rule on behalf of Respondents No. 1 to 3 and learned Assistant Government Pleader Mr. N.J.Shah waives service of notice of Rule on behalf of respondent No. 4.
5 The brief facts arising from the record of the case are as under:
5.1 A Notification dated 17th September, 2010 was published in a daily newspaper "Divya Bhaskar" on or about 23rd October, 2010 under the provisions of Section 3(A) of the National Highways Act, 1956 (hereinafter referred to as the "Act"
for short). By the said Notification, some corrections were made with regard to addition of some villages of different talukas in District - Junagadh in the original Notification dated 24th November, 2009 which was published by the respondent No.2 in three daily newspapers, namely, "Divya Bhaskar" Rajkot Edition, Rajasthan Patrika and Indian Express, both are of Ahmedabad editions. The said Notification dated 24th November, 2009 was published by the respondents on 18th December, 2009 in aforesaid daily newspapers in three different languages i.e. in Gujarati, Hindi and in English. The said Notification dated 24.11.2009 was also published in the Gazette of India in Hindi language. In the said Notification dated 24.11.2009, the respondents authorities, authorized the Officers mentioned in Column No. 2 of the Schedule, to perform the functions of such authorities under the Act. In the said Notification, it is mentioned in the Schedule that acquisition of land in respect of National Highway No. 8-D in the State of Gujarat, two districts, namely, Rajkot and Junagadh, shall be affected. The names of the villages of individual taluka which shall be affected with regard to the acquisition of the land for construction/expanding the bypass were also mentioned in the said notification.
6 The Ministry of Environment and Forests, Government of India, had issued a Notification dated 14th September, 2006 by which the Department has imposed certain restrictions and prohibition on new project or activities or on the expansion of modernization of existing projects activities based on their potential environmental impacts as indicated in the Schedule under the provisions of sub-rule (3) of Rule-5 of the Environment (Protection) Rules,1986. While issuing the said Notification, the Department has taken into consideration several notifications as well as office orders which are issued either under the Environment Act (Protection) Act, 1986 or under the Environment (Protection) Rules, 1986. By the said Notification, the Central Government has directed that on or from the date of the publication, construction of new projects, etc. shall be undertaken only after prior environmental clearance from the Central Government or as the case may be by the State Level Environment Impact Assessment Authority duly constituted by the Central Government under the Environment (Protection) Act, 1986. While issuing the said Notification, several stages are provided for getting clearance certificate from the concerned authority. Stage 3 provides for `Public Consultation' and Appendix-IV thereof prescribes the procedure for `Conduct of Public Hearing' .
7 The present project of widening or constructing bypass road falls within the category-`A' as per the Schedule attached with the Notification.
8 The respondents undertook the procedure mentioned here-in-above and accordingly public hearing was fixed on 5.1.2010 for the project of widening of two-lane National Highway No.8D to 4-Lanes divided carriageway from Jetpur to Somnath in Gujarat. As per the proceedings carried out by Regional Office of the Gujarat Pollution Control Board, Junagadh, an advertisement was published in two daily newspapers, namely, Times of India dated 4.12.2009 and in Gujarati daily Sandesh dated 3.12.2009 and Divya Bhaskar dated 4.12.2009, giving wide publicity about the public hearing which was fixed on 5.1.2010.
9 The meeting was conducted at Shamyaldas Gandhi Town Hall (Mahanagar Seva Sadan Hall), Kalwa Chowk, Junagadh. The said public meeting was presided over by the District Magistrate and Collector of Junagadh, in which experts of different branches were present. The social and political leaders and public at large were also present in the said meeting. The location of the preliminarily proposed bypass was discussed in the said meeting. The persons who were present in the said meeting voiced their suggestions with regard to the said by bypass road. The summary of the suggestions were mainly with regard to the shifting of the proposed bypass road from the place which was initially decided by the authorities.
10 A copy of record and proceedings of the public hearing which was held on 5.1.2010 was sent to the Gujarat Pollution Control Board, Gandhinagar, by the Regional Officer of GPCB, Junagadh, on 5.1.2010 itself.
11 A Notification dated 19th October, 2010 under Section 3-A of the Act was published in Hindi language in daily `Divya Bhaskar' on 19.10.2010. In the said Notification, the details of the lands which were going to be acquired for building (widening/ constructing 4 lane bypass road etc), maintenance, management and operation of National Highway No. 8-D were published. The details of the land, which is to be acquired, like the area of the land, the nature of the land, the type of the land, the survey number of the land, village of the land and taluka/district of the lands, which are required as per Section 3-A (2) of the Act were published in the said Notification.
12 This is the first Notification under Section 3-A of the Act which has described the details of the lands as per Section 3-A (2) of the Act.
13 The challenge in the present petition are, changing the alignment of bypass; issuing the Notification dated 19th October, 2010 and Order dated 14th July, 2011 on various grounds.
(i) The first ground is that the authorities have changed the alignment of the widening/constructing the bypass road on extraneous grounds and at the dictates of representation made by a local Member of Parliament and other influential local political leaders.
(ii) The second ground raised by the petitioners is that the authorities decided to change the location of the bypass since the same was passing through the limits of the Junagadh Municipal Corporation, which is without applying proper mind since the new bypass to be constructed, is also passing through the limits of Junagadh Municipal Corporation. Therefore, there is non-application of mind by the authorities in shifting the bypass.
(iii) The third ground canvassed by the petitioners is that the authorities have not followed the directions issued by the Ministry of Environment and Forests in its Notification dated 14th September, 2006, giving wide publicity of public hearing for changed bypass which is going to be affected the petitioners.
(iv) The fourth ground canvassed by Mr. Shelat is with regard to the breach of mandatory provisions contained in Section 3A(3) of the Act. It is submitted that, though, the Notification under Section 3A(1) of the Act is published in two local newspapers, the language of the Notification is either in English or in Hindi and even though one of the Notifications is published in a newspaper of a vernacular language, but is not in vernacular language. The language of the said Notification is not in Gujarati but is in Hindi, which is not the vernacular language of the area where the petitioners are residing.
(v) The last submission is with regard to the Order dated 14th July, 2011 passed by the authorities under Section 3C(2) of the Act. It is submitted that the said order is passed without following the procedure laid down in the said Section itself. No proper opportunity of hearing has been given to the objectors and the order is passed mechanically and, therefore, the order/communication is bad in eyes of law.
14 The petition is opposed by the respondents by way of filing affidavit-in-reply in response to the Notice issued by the Court.
14.1 In reply to the contention No.1 with regard to the allegation that the alignment is changed at the dictates of a local Member of Parliament, the respondents have vehemently submitted that these allegations are made without any basis and the petitioners have miserably failed in proving it. The allegations made are without any support apart from documentary evidence.
14.2 In reply to the second contention raised by the petitioners, it is the say of the respondents that the authorities have decided to shift the location of the bypass only after examining the difficulties of the local residents of that area and after verifying the geographical situation of the area through which the new bypass road can be constructed which would result into the minimum difficulties which may be suffered by the citizens of the area.
14.3 In response to the third submission, the respondents have stated that the authorities convened the public meeting as required under the notification dated 14th September, 2006 issued by the Ministry of Environment and Forests, in accordance with the procedure prescribed under the said notification. The decision is taken only in the public meeting where to construct the new bypass road.
14.4 In reply to the submission with regard to the publication of the Notification under Section 3(A)(1) is concerned, the respondents have submitted that the impugned notification dated 19th October, 2010 was published in two dailies, namely, `Times of India' and `Divya Bhaskar' and Divya Bhaskar is a local newspaper which is a vernacular language `daily'.
14.5 In reply to the submission canvassed by Mr. Shelat with regard to breach of Section-3C(2) of the National Highways Act, Mr. Joshi, submits that the authorities have given detailed reasons for rejecting the objections raised by the petitioners under Section 3C(1) of the said Act.
15 To elaborate the first ground, learned Advocate Mr. Mitul Shelat for the petitioners has submitted that the original decision of the authority was to expand the existing two-lane bypass road by converting the same from two lanes to four lanes and to acquire the lands for the said purpose. This decision was based on recommendations of the Expert Consultants appointed by the authority.
15.1 The original decision was changed by the authorities in the public meeting dated 05.01.2010 which was held at Junagadh Town Hall when the representations were made by the leaders including the local Member of Parliament. Thus, the impugned decision was based on extraneous consideration and on the dictates of the Member of Parliament. It is further submitted that a report was prepared for alignment and the construction of bypass road. As per the report, alignment of a bypass road would be constructed in such area which would be as far away from the municipal limits of Junagadh City and it traverses through the agricultural lands as minimum as possible and shall be sufficiently away from the municipal limits of Junagadh City. It is further submitted that, though, the recommendations were otherwise, the construction of proposed bypass road is passing within the municipal limits of Junagadh city and, therefore, the decision of changing the alignment of bypass is total non-application of mind and is arbitrary one.
15.2 That the distance between the original proposed bypass and the present proposed bypass which is under challenge, is only of 1.25 km and, therefore, also the decision is without justification. It is submitted that the decision of shifting the bypass road would cause more burden to the exchequer to the tune of Rs.15 crores which was not necessary at all. Burdening the public exchequer is such a decision which no reasonable or prudent person, more particularly, the authority exercising statutory powers would take and, therefore, the decision of shifting the bypass road is illegal and unconstitutional.
16. It is further submitted that the justification sought to be contended in the affidavit by the respondents is that the impugned alignment is relatively short in distance and avoids the crossing of railway line is not true since the proposed bypass road has to cross the railway lines.
16.1 In support of his above contentions, learned Advocate Mr. Shelat has relied upon several judgments which are as under:
Narayan Govind & Ors. vs. State Of Maharashtra, as reported in (1977) 1 SCC 133;
Indian Railway Construction Co. Ltd vs. Ajay Kumar, as reported in (2003) 4 SCC 579;
Smt. S.R. Venkataraman vs. Union of India & Anr., as reported in (1979) 2 SCC 491; and Noida Entrepreneurs Association vs. Noida & Ors., as reported in (2011) 6 SCC 508.
16.2 In the case of Narayan Govind & Ors. (supra), the Apex Court has held that if it appears to the court that the power conferred upon the authority has been exercised for the extraneous purpose or that the mind has not been applied at all to the real object or purpose, so that the result is that, the exercise of power could only serve some other or collateral object, the court will interfere.
16.3 In the case of Indian Railway Construction Co. Ltd. (supra), the ratio laid down by the Apex Court is that in an administrative decision, if the court finds that the decision taken by the authorities are of such a nature which would result into failure of proper exercise of discretion and excess or abusive of discretionary power, such actions are ultra vires.
16.4 In the case of Smt. S.R. Venkataraman (supra), it has been held that if the administrative order which is based on reasons of facts which do not exist must be held to be an abuse of power.
16.5 In the case of Noida Entrepreneurs Association (supra) it is held that the State actions are quite justified on the touchstone of Article-14 of the Constitution. Action of the State or its instrumentalities must be in conformity with the same principle which meets the test of reasons and relevance. Functioning of a "democratic form of government demands equality and absence of arbitrariness and discrimination". The rule of law prohibits arbitrary action and commands the authority to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favourtism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable of such a decision is antithesis to the decision taken in accordance with the rule of law.
16.6 Relying upon these decisions, it has been argued by Mr. Shelat that the authorities have not acted fairly, legally and in accordance with the object of acquiring the land other than the land which was not under acquisition at the original proposed acquisition and, therefore, decision of shifting or changing the alignment of bypass is required to be quashed and set aside.
17 In response to the first submission with regard to the allegation of interference or pressure from the local leaders including the Member of Parliament, Mr. Mihir Joshi, learned Senior Counsel for the respondents has submitted that the allegations are without any basis and are made to prejudice the court against the authority. The allegations are having no force since it is lacking any material, supporting the same. The decision of shifting the bypass road was taken in presence of Committee which was headed by the District Magistrate and Collector of Junagadh in which Experts of different branches and the persons who were likely to be affected were present in the said public meeting which was held in Junagadh Town Hall on 5.1.2010.
17.1 It is submitted that the decision of shifting the proposed bypass was a decision of Experts of Appraisal Committee which relied upon several reports submitted by the different authorities. It was principally decided by the authorities that the original proposed bypass is required to be shifted so a better option than the expansion of two lane bypass into four lane bypass on existing highway. The decision was taken to change the alignment since the original proposed area was a congested one. The decision was taken in public hearing which took place on 5.1.2010 which was attended by about 230 affected persons and on written representations from various citizens/organizations. In support of his submission, the attention of the Court is drawn by Mr. Joshi to the representation dated 19.01.2010 by Citizens of Junagadh, requesting the authorities to change the place of bypass; representation dated 13.1.2010 by Civil Engineer Association of Junagadh requesting the authorities to change the location of the bypass; representation dated 11.1.2010 by Gram Bharti Trust, which is running a hostel in the name of Shree M.L. Patel Hostel; representation dated 8.1.2010 by Junagadh Junior Chamber and representation dated 9.1.2010 by Swastik Education & Charitable Trust, which is running a Babyland High School. They have also requested the authorities that the area is congested, number of educational institutions are situated on the said highway, it would be in the interest of citizens, to shift the bypass which was initially proposed by the authorities. Similarly, the local M.P., local MLA, Corporators of Junagadh and some political committees requested the authorities to change the alignment of the bypass which was initially proposed to be constructed on the existing highway by widening the same. After considering the views and opinions of the Experts, representations made by various types of organizations and considering the overall geographical situation, the authorities have decided to change the alignment of the bypass road.
17.2 After the decision of changing the bypass from the original proposed site to new site, the respondent authorities received clearance certificate from the Authority constituted under the National Environment Act. In view of this, the allegation made by the petitioners are far from truth that the change of alignment is done at the instance of the local M.P. In support of his submission, he has relied upon the decision of the Apex Court in the case of Girias Investment Private Limited & Anr. vs. State of Karnataka & Ors., as reported in (2008) 7 SCC 53 and another decision in the case of Union of India vs. Dr. Kushala Shetty & Ors., as reported in AIR 2011 SC 3210. It is submitted that in the case of Girias Investment Private Limited (supra), the Apex Court has held that the case of mala fides can be made out if the action which is impugned has been taken with the specific object of damaging the interest of the party and such action is aimed at helping some party which results in damage to the party alleging mala fides. It is submitted that in the present case, the allegations are of very vague in nature and having no substance in it and, therefore, it is required to be discarded. Mr. Joshi, learned Senior Counsel has heavily relied on the decision of the Apex Court in case of Union of India vs. Dr. Kushala Shetty & Ors., (supra) that the High Court would not consider the case of the party who are making allegations of mala fides in absence of any material to prima facie prove that the decision is taken at the instance of the person against whom the allegations are made. It has further been held in the said case that in the absence of proper pleadings and materials, the High Court cannot make a roving inquiry to fish out some material and draw dubious conclusion that the decision and actions of the authorities are totally by mala fides. It has been further held in the said case that the courts are not at all equipped to decide upon the viability and feasibility of a particular project and whether particular alignment would sub-serve the larger public interest. In such matters, the scope of judicial review is very limited.
18. Second contention raised by the petitioners is with regard to non-application of mind by respondent authorities in shifting the bypass under the pretext that the original proposed bypass was passing through the limits of Junagadh Municipal Corporation since the present proposed bypass is also passing through the municipal limits, when the Committee on 5.1.2010, that too, in public meeting, arrived at the conclusion that the bypass shall be constructed as away as possible from municipal limits.
19. In response to the second contention raised by the petitioners, it is submitted on behalf of the respondents by Mr. Joshi that the Committee as well as the Experts in the field of construction of highways, after studying the entire geographical area of Junagadh city, decided to shift the bypass which was to be originally constructed by widening the existing highway. Even though, the proposed new bypass is passing through the limits of Junagadh Municipal Corporation, the authorities have decided that the bypass shall be constructed in such a fashion and in such an area where the citizens of Junagadh Municipal Corporation shall not be put in difficulties in their day-to-day activities and, therefore, the contention raised that the authorities have not applied their mind in shifting the bypass is without any basis and, therefore the said contention is required to rejected.
20. With regard to the next contention raised by Mr.Shelat of non-complying with the direction issued by the Ministry of Environment by its Notification dated 14.9.2006 is concerned, he has submitted that there is breach of `Procedure of Public Consultation.' He has submitted that Appendix-IV to the said Notification prescribes the Procedure for Conduct Of Public Hearing. In the present case, though, a public meeting was convened on 5.1.2010, the same was convened by the respondents for the original proposed bypass and not for the bypass which is subsequently changed. The decision of changing the alignment of the bypass was not published as required under Para-7 of this Notification, read with Appendix-IV. It is submitted that as per their own public hearing proceedings, which has been taken down in writing on 5.1.2010, it is mentioned that the authority has published advertisement for the public hearing which was scheduled on 5.1.2010 at Shamyaldas Gandhi Town Hall, Junagadh, in three dailies i.e. Times of India in English on 4.12.2009, and in Gujarati dailies- in Sandesh on 3.12.2009 and in Divya Bhaskar on 4.12.2009. This public hearing was convened, as admitted by the respondents, for the original proposed widening/constructing the bypass which is passing through Junagadh Municipality. It is the say of the petitioners that similar public hearing was required to be convened for alignment of the bypass and constructing the new bypass which is passing through a different area. The affected residents of the area were not at all aware about the decision taken in the meeting convened on 5.1.2010 that the authorities have changed their decision by shifting the construction of bypass from the original palace which was proposed at the initial stage. If such public advertisements would have appeared in the newspapers and such public hearing was convened for the new bypass, the affected parties would have made representations to the authorities and to the Committee Members. By not publishing the advertisement, the authorities have committed breach of Clause-7 read with the Appendix-IV of the Notification dated 14th September, 2006. It is the say of the petitioners that if wide publicity would have been given with regard to alignment of the bypass, the affected citizens including the petitioners could have taken part in the public meeting and could have suggested other alternatives to the authorities.
21 In response to the third contention, Mr. Joshi appearing for the respondents authorities has submitted that the environment clearance is required under the said Notification dated 14.9.2006 is for new projects or activities specified in the scheduled thereto and Clause 7(f) thereof refers to the Highways. The Notification provides that the required construction of new projects or activities listed in the Schedule should be undertaken in any part of India only after prior environmental clearance. He submits that before issuing a Notification under Section 3-A of the Act, no prior environmental clearance is required and it is only when the construction is to be undertaken, such environmental clearance is required prior thereof. He has submitted that the National Highways Authority of India has obtained environmental clearance certificate for the entire project on 29.2.2010 and this certificate has not been challenged in the petition. He further submits that there is an alternative remedy of challenging the said Notification under the provisions of National Environmental Appeal Act, 1997 and the petitioners could have challenged the said clearance certificate by way of appeal. He further submits that when the first Notification dated 24th November, 2009 was issued, the name of villages and districts were mentioned in the said Notification which were going to be affected in constructing bypass in Rajkot as well as Junagadh Districts. In view of the above mentioned facts, the authorities have complied with the procedure prescribed under Notification dated 14th September, 2006 issued by the Ministry of Environment and Forests.
22 In response to the fourth contention canvassed by the learned Advocate for the petitioners is that the authorities have committed breach of mandatory provisions contained in Section 3A(3) of the National Highways Act. The Notification dated 19.10.2010 under Section 3A(1) of the Act is published in two local newspapers, namely, Times of India and Divya Bhaskar. Times of India is printed and published in English language and Divya Bhaskar is printed and published in Gujarati language which is a vernacular language of the said area. Notification dated 19th October, 2010 was published in English in Times of India and the said Notification dated 19.10.2010 was published in Hindi language in Divya Bhaskar. Hindi language is an unknown language for the residents of Junagadh area and the vernacular language of Junagadh District is Gujarati. Under Section-3A(3) of the Act, the Competent Authority is bound to publish the Notification in two local newspapers, one of which will be in a vernacular language. In the present case, though, Divya Bhaskar is printed and published in Gujarati language i.e. the vernacular language of the area, the language of the Notification was not of Gujarati and, therefore, the authorities have committed breach of the mandatory provision of Section 3A(3) of the National Highways Act. In support of this contention, Mr. Shelat has relied upon the following judgments:
(i) Swastik Agency & Ors. vs. State Bank of India, as reported in AIR 2009 Orissa, 147, wherein it is held that the authorities were required to publish the Notification in vernacular language.
(ii) Bhavnagar University vs. Palitana Sugar Mill (P) Ltd., as reported in (2003) 2 SCC 111, wherein the Apex Court has observed that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof.
23 In reply to this contention, Mr. Joshi, learned Senior Counsel, has submitted that Section-3 of the Act contemplates that the Competent Authority shall cause the substance of the Notification to be published in two local newspapers, one of which will be in vernacular language and therefore when the Notification is published in a daily newspaper Divya Bhaskar, which is a vernacular language newspaper, the authorities have committed no breach of the said provision and, therefore, the said contention is required to be brushed aside.
24 The last contention of Mr. Shelat is with regard to non-following the procedure prescribed under Section-3C(2) of the National Highways Act. The authorities have not heard and/or decided the objections raised by the petitioners in its true spirit and without applying the mind. The Order dated 14th July, 2011 is passed mechanically. He has submitted that Section 3-I of the Act empowers the competent authority the powers under the Code of Civil Procedure while dealing with the provisions of the National Highways Act and the same power shall be used in a manner as if a Civil Court is trying a suit under the Civil Procedure Code. In view of these powers, the respondents authorities have either summoned the objectors and/or would have used the powers under Section 3-I of the Act. In the present case, none of this exercise has been undertaken by the authorities and, therefore, the Order dated 14th July, 2011 is illegal and required to be quashed and set aside.
25 In reply to this contention, Mr. Joshi has submitted that the objections raised by the petitioners were considered in detail and while passing the orders dated 14th July, 2011 under Section-3C(2) of the Act, the authorities have supplied details of reasons for rejecting the objections raised by the petitioners and, therefore, the contention has no valid foundation.
26 We have heard learned Advocates for the respective parties at length. We have also perused the memo of petition, reply thereto and additional affidavits filed by both the sides along with the annexures.
26.1 With respect to the first contention that the alignment of widening/constructing of the bypass road was changed at the instance or at the dictates of the local Member of Parliament and other influential local public leaders is concerned, we have gone through the allegations made in detail by the petitioners in the memo of petition. The petitioners have raised the ground of mala fides in Ground (d). The allegations made by the petitioners are that the Committee decided to change the alignment only at the dictates of the Member of Parliament, but in support of this, the petitioners have failed to produce any documentary evidence or other evidence that the authorities have considered only and only the representation made by him. We have gone through the representations made by Citizens of Junagadh dated on 19.1.2010, the representation of Civil Engineers Association on 13.1.2010 and similar suggestions made by different institutions. It is true that the local Member of Parliament has requested the National Highway Authority of India to alter the place of widening the bypass which was proposed in the original plan. He has further requested that looking to the area of Junagadh which is surrounded by Girnar Wildlife Sanctuary, the new bypass may be constructed at a distance of 3 to 4 kms away from the existing Junagadh bypass. He has not suggested any area from which the new bypass shall be constructed. Similar is the representation by local Member of Legislative Assembly dated 17.1.2010. The Corporators of Junagadh City have also made detailed representation since the original construction of bypass was passing through a thickly populated area which was not desirable in the interest of citizens of Junagadh City. The respondents have produced a map along with heir affidavit-in-reply showing the original proposed bypass and two options which were considered for shifting the bypass. Out of these two options, the authorities have decided to shift the bypass after getting details from different authorities. The respondents have denied the allegations leveled against the authorities and have submitted that (i) the Act was enacted by the Parliament for the constitution of an Authority for the development, maintenance and management of National Highways and matters connected therewith and incidental thereto being Act No. 68 of 1988 and thus `National Highways Authority of India' (NHAI) came into existence; (ii) the function of the Authority is to develop, maintain and manage the National Highways already vested in and other National Highways which may be vested in or entrusted to it by the Central Government; (iii) any land required by the Authority for discharging its function under NHAI Act 1988 shall be deemed to be land needed for a public purpose and such land may be acquired for the Authority under the provisions of National Highways Act, 1956 (48 of 1956) as provided under Section 13 of the said NHAI Act, 1988; (iv) as defined under Section 3-A of the National Highways Act, 1956, 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 Highways or part thereof, it may, by notification in the official gazette, declare its intention to acquire such land and such a notification shall give a brief description of the land to be acquired for the aforesaid purpose and (v) for the purpose of acquisition of land and to exercise authority for the said purpose under National Highways Act, 1956, Competent Authority under Section 3-A of the said Act has to be appointed by the Central Government.
26.2 It is further contended in the affidavit-in-reply that the entire process of land acquisition is performed by the Competent Authority, namely, Special Land Acquisition Officer, Collector Office, Junagadh, for the area under reference. He has also produced a map to demonstrate that the yellow line in the map shows the old highway which was passing through Junagadh City and on the left side of Junagadh City in the map, the wildlife sanctuary is situated. Therefore, expansion of road from that side of the City was not possible. The black line close to the yellow line in the map shows the bypass under existence constructed by the State Government. This bypass indicated in the black line shows the railway line has to be crossed to get it connected back to yellow line i.e. old highway. The yellow line further shows that railway line has to be crossed once again to go towards Somnath. Accordingly, initially the bypass was tentatively proposed as reflected by way of red line very close to black line. It is further contended that the red line starting from Vadal and close to black line was considered in a manner that railway line was not required to be crossed. However, as per the outcome of the meeting organized by the Gujarat Pollution Control Board where the District Collector and about 230 representatives of different villages were present, it was suggested that, the bypass should be at least 3-4 kms away from the city of Junagadh. The matter was referred to independent consultant who considered two alternatives, one is reflected in white line and another one is reflected in another red line, which starts from a point ahead of Vadal towards Jetpur from Junagadh and this outer red line covers much longer distance and would be much more expensive. The Independent consultant therefore recommended the proposed bypass shown in white line which is away from the City of Junagadh and also relatively shorter in distance and which avoids crossing of railway line too. This proposal of the Independent Consultant reflected in white line, which passes at a reasonable distance away from Junagadh City and also avoids railway crossing was considered and approved by the Competent Authority of NHAI.
27 The ratio laid down in the case of Union of India v. Dr. Kushala Shetty (supra) in our considered opinion, would be applicable in the present case as far as the allegations of mala fides are concerned. It has been held by the Apex Court that when the petitioners have made a bald allegation that the decision of alignment has been taken at the instance of a particular person and neither any material is placed on record nor it has been prima facie proved that the decision was a mala fide one, the High Court cannot make a roving inquiry to fish out some material and draw a dubious conclusion that the decision and action of the respondents are tainted by mala fides. It is further observed in the said judgment that when the decision is taken by the Competent Authority with the help of Experts in the subjects and when it is established that the decisions are taken in the interest of public at large and there is no material to establish that the decision is mala fide one, the courts are not permitted to review the decision of Experts in its judicial power. The Court can nullify the acquisition of land in rarest of rare cases, a particular project, if it is found to be ex facie contrary to the mandate of law or tainted due to mala fides. In the present case, we hereby hold that the petitioners have failed to establish that the decision of changing the alignment of bypass is mala fide and taken at the instance of local leaders and, therefore, the said contention is hereby negatived.
28 Dealing with the second contention, with regard to non-application of mind by the authorities, while shifting the bypass on the ground that the original proposed bypass was passing through Junagadh Municipal Corporation which necessitated to be changed as per public meeting held on 5.1.2010 away from the limits of Junagadh Municipal Corporation since the present bypass which is proposed is also passing through the limits of Junagadh Municipal Corporation, we are of the opinion that the same is in consonance with the necessity of the day. The distance between the original proposed bypass and the present proposed bypass may hardly be 1.25 km, but the decision was taken in a public meeting dated 5.1.2010 to shift the bypass from the area which is alleged to have been thickly populated is in the interest of public at large and in the interest of students who are studying in the educational institutions which are situated on the original proposed bypass. We accept the say of the respondents with regard to this contention, that the decision has been taken in the interest of the public at large and when a bypass is passing through a highly populated locality, there are all possibilities of more accidents. When the traffic passes through the bypass, the speed would be higher than normal speed. After studying the geographical area, from which the original proposed bypass was to be constructed or widened, the authorities found that the said area was a congested one and it was thickly populated and number of educational institutions were found on the said road and, therefore, the decision was taken to shift the highways. The authorities have considered two options for the site of shifting of the bypass which is shown in the map produced along with the affidavit-in-reply. The authorities have compared the two options and, ultimately, came to the conclusion that the option No.1 is required to be accepted since the expenditure of constructing bypass would be less than option No.2. The authorities have decided to spend more amount of about Rs.15 crores for shifting the originally proposed bypass as the same was hazardous for the public and the Junagadh City. In view of all these exercise undertaken by the authorities, we are of the opinion that, though, the present proposed bypass is to be constructed within the limits of Junagadh Municipality, the exercise undertaken by the authorities are justified and, as stated here-in-above, the Court will not interfere in the decisions of the Experts as far as the construction of bypass road is concerned. We therefore hold that the authorities have rightly finalized Option No. 2 for construction of bypass.
29 The third ground canvassed by the petitioners is with regard to non-following of the directions issued by the Ministry of Environment which are enumerated in the Notification dated 14th September, 2006. Stage-3 of the said Notification provides for `Public Consultation, which is reproduced as under:
(7) III.
Stage (3) - Public Consultation:
(i) "Public Consultation" refers to the process by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity are ascertained with a view to taking into account all the material concerns in the project or activity design as appropriate. All Category 'A' and Category B1 projects or activities shall undertake Public Consultation, except the following:-
(a) modernization of irrigation projects (item 1(c) (ii) of the Schedule).
(b) all projects or activities located within industrial estates or parks (item 7(c) of the Schedule) approved by the concerned authorities, and which are not disallowed in such approvals.
(c) expansion of Roads and Highways (item 7 (f) of the Schedule) which do not involve any further acquisition of land.
(d) all Building /Construction projects/Area Development projects and Townships (item 8).
(e) all Category 'B2' projects and activities.
(f) all projects or activities concerning national defence and security or involving other strategic considerations as determined by the Central Government.
(ii) The Public Consultation shall ordinarily have two components comprising of:-
(a) a public hearing at the site or in its close proximity- district wise, to be carried out in the manner prescribed in Appendix IV, for ascertaining concerns of local affected persons;
(b) obtain responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity.
(iii) The public hearing at, or in close proximity to, the site(s) in all cases shall be conducted by the State Pollution Control Board (SPCB) or the Union territory Pollution Control Committee (UTPCC) concerned in the specified manner and forward the proceedings to the regulatory authority concerned within 45(forty five ) of a request to the effect from the applicant.
(iv) In case the State Pollution Control Board or the Union territory Pollution Control Committee concerned does not undertake and complete the public hearing within the specified period, and/or does not convey the proceedings of the public hearing within the prescribed period directly to the regulatory authority concerned as above, the regulatory authority shall engage another public agency or authority which is not subordinate to the regulatory authority, to complete the process within a further period of forty five days.
(v) If the public agency or authority nominated under the sub paragraph
(iii) above reports to the regulatory authority concerned that owing to the local situation, it is not possible to conduct the public hearing in a manner which will enable the views of the concerned local persons to be freely expressed, it shall report the facts in detail to the concerned regulatory authority, which may, after due consideration of the report and other reliable information that it may have, decide that the public consultation in the case need not include the public hearing.
(vi) For obtaining responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity, the concerned regulatory authority and the State Pollution Control Board (SPCB) or the Union territory Pollution Control Committee (UTPCC) shall invite responses from such concerned persons by placing on their website the Summary EIA report prepared in the format given in Appendix IIIA by the applicant along with a copy of the application in the prescribed form , within seven days of the receipt of a written request for arranging the public hearing .
Confidential information including non-disclosable or legally privileged information involving Intellectual Property Right, source specified in the application shall not be placed on the web site. The regulatory authority concerned may also use other appropriate media for ensuring wide publicity about the project or activity. The regulatory authority shall, however, make available on a written request from any concerned person the Draft EIA report for inspection at a notified place during normal office hours till the date of the public hearing. All the responses received as part of this public consultation process shall be forwarded to the applicant through the quickest available means.
(vii) After completion of the public consultation, the applicant shall address all the material environmental concerns expressed during this process, and make appropriate changes in the draft EIA and EMP. The final EIA report, so prepared, shall be submitted by the applicant to the concerned regulatory authority for appraisal. The applicant may alternatively submit a supplementary report to draft EIA and EMP addressing all the concerns expressed during the public consultation."
30 As per Clause 7(iii) of Stage-3 (ii)(a) is concerned, Appendix-IV is provided for the manner/procedure for Conduct of Public Hearing, which is reproduced here-in-below:
PROCEDURE FOR CONDUCT OF PUBLIC HEARING The Public Hearing shall be arranged in a systematic, time bound and transparent manner ensuring widest possible public participation at the project site(s) or in its close proximity District -wise, by the concerned State Pollution Control Board (SPCB) or the Union Territory Pollution Control Committee (UTPCC).
2.0 The Process:
2.1 The Applicant shall make a request through a simple letter to the Member Secretary of the SPCB or Union Territory Pollution Control Committee, in whose jurisdiction the project is located, to arrange the public hearing within the prescribed statutory period. In case the project site is extending beyond a State or Union Territory, the public hearing is mandated in each State or Union Territory in which the project is sited and the Applicant shall make separate requests to each concerned SPCB or UTPCC for holding the public hearing as per this procedure.
2.2 The Applicant shall enclose with the letter of request, at least 10 hard copies and an equivalent number of soft (electronic) copies of the draft EIA Report with the generic structure given in Appendix III including the Summary Environment Impact Assessment report in English and in the local language, prepared strictly in accordance with the Terms of Reference communicated after Scoping (Stage-2).
Simultaneously the applicant shall arrange to forward copies, one hard and one soft, of the above draft EIA Report along with the Summary EIA report to the Ministry of Environment and Forests and to the following authorities or offices, within whose jurisdiction the project will be located:
(a) District Magistrate/s
(b) Zila Parishad or Municipal Corporation
(c) District Industries Office
(d) Concerned Regional Office of the Ministry of Environment and Forests 2.3 On receiving the draft Environmental Impact Assessment report, the above mentioned authorities except the MoEF, shall arrange to widely publicize it within their respective jurisdictions requesting the interested persons to send their comments to the concerned regulatory authorities. They shall also make available the draft EIA Report for inspection electronically or otherwise to the public during normal office hours till the Public Hearing is over. The Ministry of Environment and Forests shall promptly display the Summary of the draft Environmental Impact Assessment report on its website, and also make the full draft EIA available for reference at a notified place during normal office hours in the Ministry at Delhi.
2.4 The SPCB or UTPCC concerned shall also make similar arrangements for giving publicity about the project within the State/Union Territory and make available the Summary of the draft Environmental Impact Assessment report (Appendix III A) for inspection in select offices or public libraries or panchayats etc. They shall also additionally make available a copy of the draft Environmental Impact Assessment report to the above five authorities/offices viz, Ministry of Environment and Forests, District Magistrate etc. 3.0 Notice of Public Hearing:
3.1 The Member-Secretary of the concerned SPCB or UTPCC shall finalize the date,time and exact venue for the conduct of public hearing within 7(seven) days of the date of receipt of the draft Environmental Impact Assessment report from the project proponent, and advertise the same in one major National Daily and one Regional vernacular Daily. A minimum notice period of 30(thirty) days shall be provided to the public for furnishing their responses;
3.2 The advertisement shall also inform the public about the places or offices where the public could access the draft Environmental Impact Assessment report and the Summary Environmental Impact Assessment report before the public hearing.
3.3 No postponement of the date, time, venue of the public hearing shall be undertaken, unless some untoward emergency situation occurs and only on the recommendation of the concerned District Magistrate the postponement shall be notified to the public through the same National and Regional vernacular dailies and also prominently displayed at all the identified offices by the concerned SPCB or Union Territory Pollution Control Committee;
3.4 In the above exceptional circumstances fresh date, time and venue for the public consultation shall be decided by the Member -Secretary of the concerned SPCB or UTPCC only in consultation with the District Magistrate and notified afresh as per procedure under 3.1 above.
4.0 The Panel
4.1 The District Magistrate or his or her representative not below the rank of an Additional District Magistrate assisted by a representative of SPCB or UTPCC, shall supervise and preside over the entire public hearing process.
5.0 Videography 5.1 The SPCB or UTPCC shall arrange to video film the entire proceedings. A copy of the videotape or a CD shall be enclosed with the public hearing proceedings while forwarding it to the Regulatory Authority concerned.
6.0 Proceedings 6.1 The attendance of all those who are present at the venue shall be noted and annexed with the final proceedings.
6.2 There shall be no quorum required for attendance for starting the proceedings.
6.3 A representative of the applicant shall initiate the proceedings with a presentation on the project and the Summary EIA report.
6.4 Every person present at the venue shall be granted the opportunity to seek information or clarifications on the project from the Applicant. The summary of the public hearing proceedings accurately reflecting all the views and concerns expressed shall be recorded by the representative of the SPCB or UTPCC and read over to the audience at the end of the proceedings explaining the contents in the vernacular language and the agreed minutes shall be signed by the District Magistrate or his or her representative on the same day and forwarded to the SPCB/UTPCC concerned.
6.5 A Statement of the issues raised by the public and the comments of the Applicant shall also be prepared in the local language and in English and annexed to the proceedings:
6.6 The proceedings of the public hearing shall be conspicuously displayed at the office of the Panchayats within whose jurisdiction the project is located, office of the concerned Zila Parishad, District Magistrate ,and the SPCB or UTPCC . The SPCB or UTPCC shall also display the proceedings on its website for general information. Comments,if any, on the proceedings which may be sent directly to the concerned regulatory authorities and the Applicant concerned.
7.0 Time period for completion of public hearing
7.1 The public hearing shall be completed within a period of 45 (forty five) days from date of receipt of the request letter from the Applicant. Therefore the SPCB or UTPCC concerned shall sent the public hearing proceedings to the concerned regulatory authority within 8(eight) days of the completion of the public hearing .The applicant may also directly forward a copy of the approved public hearing proceedings to the regulatory authority concerned along with the final Environmental Impact Assessment report or supplementary report to the draft EIA report prepared after the public hearing and public consultations.
7.2 If the SPCB or UTPCC fails to hold the public hearing within the stipulated 45(forty five) days, the Central Government in Ministry of Environment and Forests for Category 'A' project or activity and the State Government or Union Territory Administration for Category 'B' project or activity at the request of the SEIAA, shall engage any other agency or authority to complete the process, as per procedure laid down in this notification."
31 As stated here-in-above, when the public meeting was convened by the authorities on 5.1.2010, it appears to us that the authorities did follow all the procedures prescribed under this Notification. Advertisements were published in local newspapers in English as well as in Gujarati languages inviting public at large for their views, suggestions, etc. The public meeting was held in the presence of the District Collector and responsible officers from the different departments in public place like City Town Hall. It appears from the Minutes of the meeting and the decision taken in the said meeting that the public at large who were affected by the original proposed widening/constructing of bypass were present. The local leaders submitted their representations, different institutions also put up their suggestions before the Committee and a healthy discussion took place in the meeting held on 5.1.2010. It appears that the authorities and the public was aware about the originally proposed bypass which was passing through thickly populated area. The grievance raised by the local residents as well as the educational institutions and the local leaders were discussed in the meeting and their suggestions were accepted by the Experts and thereafter the decision is taken by the authorities to shift the bypass from the place originally proposed.
32 We do not accept the submission made by learned Advocate Mr. Joshi that when the original Notification dated 4th November, 2009 was published, the villagers of the Rajkot and Junagadh Districts were aware that the authorities have decided to construct a bypass which would be passing through these two Districts. The said Notification was published only with regard to the appointment of the Officers who shall act as the Officers under the National Highways Act. In this Notification, no details are provided by the authorities about the lands which are going to be acquired by the authorities. It is their own admission in their affidavit-in-reply and map that the authorities had considered two options for new bypass after the decision which was taken in public meeting of 5.1.2010.
33 When the authorities decided to change the alignment of the bypass from one place to another place, the procedure prescribed in the Notification dated 14th September, 2006, was necessary to be undertaken again by publishing the advertisement and inviting suggestions from the public at large. There are all possibilities that after going through the details of the proposed bypass, the affected villagers and some leaders might have suggested some more options to the authorities. We are aware that there should be some finality in deciding the project to avoid delay in constructing the same. However, when the decision is taken, which resulted into total change of alignment of the construction of bypass, the authorities are bound to follow the prescribed procedure under the said Notification issued by the Ministry of Environment. When the authorities came to the final conclusion that out of the two options, Option No.1 was feasible in its entirety, the public at large was required to be invited and a public meeting was required to be convened in the similar manner which was conducted in the past. It is clear from the Minutes recorded in the public meeting held on 5.1.2010 that the main issue which was discussed was about the shifting of the bypass from the original place, which was intended by the authorities. When the Committee suggested that the Junagadh bypass shall be constructed away from the existing bypass for a better development of Junagadh City, then, the authorities should have followed the instructions contained in the Notification dated 14th September, 2006 and invited the public for hearing. It is true that the authorities have obtained the Environmental Clearance Certificate from the Ministry of Environment & Forests, Government of India, New Delhi, vide its letter dated 29th September, 2010. It appears that from the said certificate that the said Department has considered the entire project as a whole. The authorities might be aware about the public meeting convened on 5.1.2010, but may not be aware that the authorities have not undertaken the procedure prescribed of public meeting as per the Notification dated 14th September,2006 for the new proposed bypass. In view of this factual aspect, we hereby hold that the authorities have failed in following the directions issued in the aforesaid Notification dated 14 th September, 2006, issued by Ministry of Environment & Forests, Government of India.
34 With regard to the third contention that the mandatory provision of Section 3A(3) of the Act is not followed by the respondents while publishing the Notification in two local newspapers. Section 3-A of the National Highways Act is reproduced here-in-below:
"3A.
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."
34.1 The Notification issued under Section 3A(1) of the Act declaring its intention to acquire the land for constructing the National Highway was published on 19th October, 2010 in two local newspapers. One newspaper i.e. `Times of India' is a local newspaper which is printed and published in English language and another one is `Divya Bhaskar', which is printed and published in Gujarati language. In `Times of India', the language of the Notification published was English whereas in Divya Bhaskar, the language of the Notification published was Hindi. The words used in sub-section (3) of Section 3-A of the Act are that the substance of the Notification shall be published in two local newspapers, one of which will be in a vernacular language. We do not accept the submissions made by learned Senior Counsel Mr. Joshi that out of two newspapers, `daily' `Divya Bhaskar is printed and published in vernacular language, language of newspaper is necessary and not the language of Notification. The intention of the Legislature is to make the people know that whose lands are under acquisition. Sub-section (2) of Section-3A of the Act provides that a brief description of the land is required to be published in a Notification which is issued under sub-section (1) of Section 3-A of the Act. If the description of the land, etc. is printed in other than the language of vernacular one, the persons, whose lands are under acquisition, would not be understood the same and, therefore, their valuable rights for raising objections shall be vitiated. The intention of the Legislature would be such that when one's land is under acquisition, he should be made aware about the same. Unless, the details are not published in a vernacular language, the persons, whose lands are under acquisition, never come to know about the same. The mandate of the Act is to make aware the citizens whose lands are under acquisition and not to make the same a formality.
34.2 In the case of Swastik Agency & Ors. (supra), the Division Bench of Orissa High Court has held in paragraph 74 as under:
" 74.
The distinction between the literal interpretation and purposive construction of statute has almost diminished and there could be hardly a smoke screen dividing the same. It is not permissible for the Court to change the placement of the words. However, the language used in the Rules has to be read in the context of the subject in entirety. The Rule has been engrafted to protect the persons who may be aggrieved because of depressed sale. The term "vernacular" has to be considered in a correct perspective in the context of the rural and illiterate masses of the country. If the notice is published in English in a newspaper printed in vernacular language, it would be definitely not serve the purpose for which the Rule has been grafted. Therefore, notice has to be published in vernacular language in the newspaper published in vernacular language. The property mortgaged with the secured creditor may situate in rural area and the persons residing in rural area may be interested in purchasing it. Therefore, the need was considered to have the publication of the notice in vernacular language also. The concept of flexibility in the science of interpretation is to be adopted. If the provision applicable herein is given a strict literal meaning it will not be possible to subserve the purpose of giving notice to all intending purchasers and get the maximum price for the secured assets. Section 4(1) notice under the Land Acquisition Act is always published in vernacular language.
34.3 If we peruse the `Britannica Encyclopedia', dictionary meaning of the word `vernacular' reads as under:
(a) "using a language or dialect native to a region or country rather than a literally, cultured, or foreign language;
(b) of, relating to, or being of a standard language or dialect of a place, region or country;
(c) of, relating to, or being the normal spoken form of a language.
34.4 If we go through the meaning of the word `vernacular' it is clear that the meaning of the word `vernacular' as per the dictionary meaning is that "the language or dialect spoken by ordinary people of the country or region. Another meaning given is that spoken as one's mother tongue rather than learned or imposed as a second language.
34.5 This is an admitted position that the language of the region where the petitioners are residing, the language used by them is Gujarati and Hindi language used in the Notification is a foreign language for them. The normal spoken language in the said region is `Gujarati' and not `Hindi'. Similarly, government imparts education in primary school level is also Gujarati in the entire State of Gujarat including the region where the petitioners are residing.
35 As stated here-in-above, the language used in the Notification published in `Divya Bhaskar' is in Hindi language which is not the language of the region and not the mother tongue of the residents of that area. At the initial stage, when the Officers were appointed for the acquisition proceedings, the authorities have published the Notification in three daily newspapers i.e. one in Gujarati, another is in Hindi and third one is in English. The authorities should have undertaken the same exercise by publishing the most import Notification under Section 3-A(1) of the National Highways Act by which the description of the lands etc are mentioned which are under acquisition. The authorities have failed in following the mandatory provision of the said Section. In the case of Madhya Pradesh Housing Board vs. Mohd. Shafi & Ors., as reported in (1992) 2 SCC 168, in which the Apex Court has held that if a Notification is defective and does not comply with the requirements of the Act, it is not only vitiates the Notification but also renders all subsequent proceedings connected with the acquisition bad. Of course, this case was with regard to the Notification issued under Section-4 of the Land Acquisition Act, 1894, but the principle laid down in the said case is applicable in the facts of the present case also when the Court has come to the conclusion that the authorities have committed breach of mandatory provision contained in Section 3A(3) of the National Highways Act and valuable rights of raising objections under Section-3C of the Act is vitiated. We hereby hold that the authorities have not followed the mandatory provisions of Section 3A(3) of the National Highways Act, 1956 while issuing Notification dated 19.10.2010.
36 The last submission with regard to the decision rendered by the authorities under Section 3C(2) of the National Highways Act is concerned, we do not want to offer any comments since we have come to the conclusion that the Notification issued by the authorities under Section 3A(1) of the National Highways Act is contrary to law and against the mandatory provisions of the Act and, therefore, the subsequent proceedings undertaken by the authorities becomes bad in eyes of law.
37 In the result, the petition is partly allowed. The Notification dated 19th October,2010 issued under Section 3A(3) of the National Highways Act, 1956, is quashed and set aside and accordingly the subsequent proceedings undertaken by the respondents-authorities are held to be null and void. Rest of the prayers are rejected. Rule is made absolute to the aforesaid extent only. There shall be no order as to costs.
(V.M. SAHAI, J.) (A.J. DESAI, J.) pnnair Top