Karnataka High Court
Dr V S Shukla vs National Highways Authority Of India on 24 July, 2012
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
1
R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION Nos.34315-34317 OF 2010 (LA-RES)
BETWEEN:
1. Dr.V.S.Shukla,
S/o.Late Professor Hajari Lal Shukla,
Aged about 60 years,
Residing at Green Acres (Doctors Farm)
Opp ITC, Bellary Main Road,
BIA Road, Doddajala Railway Crossing,
Bangalore North - 562 157.
2. Dr.Anjela Geetha Shukla,
W/o.Dr.V.S.Shukla,
Aged about 56 years,
Residing at Green Acres (Doctors Farm)
Opp ITC, Bellary Main Road,
BIA Road, Doddajala Railway Crossing,
Bangalore North - 562 157.
3. Dr.C.R.Devendra,
S/o.Col.C.R.Ramakrishna @C.R.Singh,
Aged about 50 years,
Residing at No.41, Second Cross Road,
Kumara Park, West Extension,
Bangalore - 560020. ... Petitioners
(By Sri Reuben Jacob, Advocate)
AND:
1. National Highways Authority
Of India (Ministry of Road
2
Transport & Highways)
Represented by its Project Director,
Project Implementation Unit - Yelahanka,
Sy.No.13, 14th km, Nagasandra,
Bengaluru - Tumkur road (NH-4)
Bengaluru - 560073.
2. The Union of India,
Represented by its Secretary,
(Ministry of Road Transport
& Highways) New Delhi.
3. The State of Karnataka,
Represented by its Chief Secretary,
Vidhana Soudha,
Bangalore -560 001.
4. Special land Acquisition Officer
and Competnet Authority,
NHAI, No.678/3,
Neerubhavi Kempanna Layout,
Hebbal, Bangalore- 560 024. ... Respondents
(By Smt.Shilpa Shaw, Advocate for M/s.Singhania
and Partners for R1 R2 and R4:
Sri K.Krishna, AGA for R3)
These writ petitions are filed under Articles 226 &
227 of the Constitution of India, praying to quash the
impugned notification dated 2.7.2010 issued under
Section 30(1) and (2) and under Section 3(G) of the
National Highways Act, 1956 (48 of 1956) with amended
Act of 1997 issued by the 4th respondent vide Annexure-
A by the R4 and declare the same as unconstitutional
and etc.,
These writ petitions, coming on for preliminary
hearing in 'B' group, this day, the Court made the
following:
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ORDER
The petitioners have raised the challenge to the notification, dated 02.07.2010 (Annexure-A) acquiring their lands for the purpose of widening the National Highway No.7 (Hyderabad-Bangalore Road).
2. Sri Reuben Jacob, the learned counsel for the petitioners submits that the objections raised by the petitioners are not considered by the competent authority. The objections filed by the petitioners on 25.01.2010 are required to be allowed or disallowed by the competent authority by passing the order. In the instant case, some of the objections raised by the petitioners are considered and rejected not by the competent authority but by the Project Director, as is evident from the Project Director's letter, dated 21.06.2010 (Annexure-N2). Based on the said letter, the competent authority is called upon to send reply to the petitioners.
3. The learned counsel submits that the available vacant lands belonging to the Government/National 4 Highway Authority ought to have been utilised for the road widening purpose. He submits that without exhausting the said available lands, the respondents have resorted to acquiring the petitioners' lands lying on the western side of the national highway.
4. He submits that the preliminary notification is vague and sketchy. It does not contain the particulars of the total extent of the lands and the schedule and boundaries of the lands proposed to be acquired. Sri Reuben Jacob relied on the Apex Court's judgment in the case of COMPETENT AUTHORITY vs. BARANGORE JUTE FACTORY AND OTHERS reported in (2005) 13 SCC 477 to buttress his submission that the failure to mention the schedule and boundary of the acquired lands vitiates the acquisition notifications. He read out the last portion of paragraph 5 of the said decision which is extracted hereinbelow:
"So far as the question whether the impugned notification meets the requirement of Section 3- A(1) of the Act regarding giving brief description of 5 land is concerned, we have already shown that even though plot numbers of lands in respect of each mouza are given, different pieces of land are acquired either as whole or in part. Wherever the acquisition is of a portion of a bigger piece of land, there is no description as to which portion was being acquired. Unless it is known as to which portion was to be acquired, the petitioners would be unable to understand the impact of acquisition or to raise any objection about user of the acquired land for the purposes specified under the Act or to make a claim for compensation. It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning. In our view, the impugned notification fails to meet the statutory mandate. It is vague. The least that is required in such cases is that the acquisition notification should let the person whose land is sought to be acquired know what he is going to lose. The impugned notification in this case is, therefore, not in accordance with the law."
5. He submits that as per the notifications what is acquired is 2,400 sq. metres from the land at Sy.No.69; on the other hand, the markings have taken place, as if 6 the acquisition is for 4000 sq. metres. He submits that there has been no application of mind. He submits that there is a residential house on the land at Sy.No.67. The grave of the father of the second and third petitioners is on the land at Sy.No.68. These specific objections have not been considered.
6. He submits that on the eastern side of the national highway, there is 12 metres width space; beyond the said space is the land belonging to the I.T.C. The said space of 12 metres width is not being utilised only to leave the property of the I.T.C. un-acquired.
7. Smt.Shilpa Shah, the learned counsel, representing M/s.Singhania and Partners appearing for the respondent Nos.1, 2 and 4 submits that the objections are considered and rejected by the competent authority. She submits that the Project Director's letter, dated 21.06.2010 (Annexure-N2) is in response to the representation made to the Human Rights Commission. She submits that the hearing of the objections was 7 concluded on 22.03.2010 and five months thereafter, the Project Director has sent the letter which has nothing to do with the hearing of objections.
8. She submits, on instructions, that the property belonging to the I.T.C. is already acquired. She submits that its possession is taken and the work has already begun. She submits that since I.T.C. property on the eastern side of the road is taken, there is no question of any space between I.T.C. property and the existing road lying vacant or unused.
9. She submits that the road alignment is decided by the experts in the field; it cannot be changed or shifted to leave any property un-acquired.
10. She submits that the decision of the Apex Court in the case of COMPETENT AUTHORITY (supra) does not come to the rescue of the petitioners in any way for three reasons.
(a) In the said reported decision of the Apex Court, the land-losers had not filed the objections.8
(b) It is made clear in the said decision that, if the plan of the area under acquisition is made part of the notification, on the ground of the vagueness of the notification the acquisition proceedings cannot be invalidated. She read out para 6 and first part of para 7 which are extracted hereinbelow:
"6. While dealing with the question of brief description of land in the acquisition notifications, reference was made to some judgments of this Court where acquisition notifications under Section 4 of the Land Acquisition Act had come up for consideration on account of challenge being levelled on the ground of vagueness of the notifications. In most of these cases, plan of the area under acquisition was made part of the notifications to show that the requirement of description of land was met. This leads us to inquire whether there was any site plan forming part of the impugned notification.
7. The availability of a plan would have made all the difference. If there is a plan, the area under acquisition becomes identifiable immediately. ......................"9
(c) That the preliminary notification is vague is not one of the grounds raised by the petitioners in their objections before the competent authority.
11. Sri K.Krishna, the learned Additional Government Advocate appearing for the respondent No.3 makes the submissions akin to the submissions made by Smt.Shilpa Shah.
12. The submissions of the learned counsel have received my thoughtful consideration.
13. The first question that falls for my consideration is what is the scope of filing the objections to the preliminary notification under Section 3C of the National Highways Act, 1956 (hereinafter referred to as 'the said Act' for short).
14. To examine this question, it is necessary to refer to the relevant statutory provisions. Section 3C (1) and (2) of the said Act read as follows:
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"3C. Hearing of objections.- (1) Any person interested in the land may, within twenty-one days from the date of publication of the notification under sub-section (1) of section 3A, object to the use of the land for the purpose or purposes mentioned in that sub-section.
(2) Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, any may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections."
15. The perusal of the afore-extracted provision shows that the objection can be only with reference to the use of the land for the purpose/s mentioned in Section 3A of the said Act. Now it is necessary to refer to what Section 3A speaks of, which is extracted hereinbelow:
"3A. Power to acquire land, etc., - (1) Where the Central Government is satisfied that 11 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.
16. I may usefully refer to the Division Bench's judgment of the Calcutta High Court in the case of RIDH KARAN REKECHA AND ANOTHER v. UNION OF INDIA AND OTHERS reported in 2004 (4) CHN 327, wherein it is held that the objection under Section 3C(1) of the Act is confined only to the utility of the lands for the purpose. The scope for filing and considering the objections under Section 3C(1) is extremely limited compared with the scope for filing objections in Section 5A enquiry under the Land Acquisition Act, 1894. On the same lines is the decision of the Madras High Court in the case of SHRI ANDAL ALAGAR KALYANA MANDAPAM PVT. LTD. v. THE UNION OF INDIA AND OTHERS reported in 2007(4) LW 682.
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17. In this regard, it is profitable to refer to the Apex Court judgment in the case of UNION OF INDIA vs. DR.KUSHALA SHETTY & ORS. reported in (2011) 12 SCC 69. Para 28 of the judgment is extracted hereinbelow:
"28. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the 13 larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained."
18. The Apex Court in the case of COMPETENT AUTHORITY (supra) has taken the view that the objections can be only to the use of the land under the acquisition for purposes other than those under Section 3A(1) of the said Act. The Act gives a limited right to object to the acquisition as such. The only objection entertainable under the Act is the non-suitability of the land for the purpose of road, etc. Therefore the petitioners are not entitled to get the acquisition proceedings invalidated on the ground that some of their objections are not considered.
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19. That there is a house building erected on the land in question or that there is a temple or grave cannot be a ground for dropping of the acquisition proceedings under the said Act. The consideration of such objections is beyond the scope provided under the said Act.
20. That the road can be realigned by using the lands on the eastern side cannot be a ground for interference in the acquisition proceedings. In the case of UNION OF INDIA (supra), the Apex Court has upheld the competent authority's similar order passed on more or less similar set of objections filed by the land-losers. The Apex Court has taken the considered view that the National Highways Authority is a professionally managed statutory body having high degree of expertise in the field of highway development and maintenance and that the Courts should not substitute their wisdom for the wisdom of the National Highways Authority in the matter of where and how the roads are to be formed.
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21. In the case of SUBHASHGIR KHUSHALGIR GOSAVI AND OTHERS v. SPECIAL LAND ACQUISITION OFFICER AND OTHERS reported in AIR 1996 SC 3169, the Apex Court has held that it is not for the Court to decide which place is more convenient for the public purpose; it is for the Government to take a decision in the matter.
22. In the case of STATE OF PUNJAB AND ANOTHER v. GURDIAL SINGH AND OTHERS reported in (1980) 2 SCC 471, the Apex Court has held that the Court cannot interfere with the choice of the land to be acquired for a stated public purpose, unless it is shown to be malafide or otherwise void.
23. These are not the cases in which the respondents have resorted to pick and choose in the matter of acquiring the lands. They have acquired the land on both the eastern and western sides on an uniform basis.
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24. The next question that falls for consideration is whether the preliminary notification is bad as it does not contain the particulars of the land proposed to be acquired. The answer is emphatic 'no' because the preliminary notification itself states that the land plans are available for inspection. It is the availability of a plan that makes all the difference, as held by the Apex Court in the case of COMPETENT AUTHORITY (supra). As the plan of the area under acquisition is made a part of the preliminary notification, I have no hesitation in holding that not giving all the particulars of the land has not vitiated the acquisition proceedings.
25. In the result, not finding any merit in these petitions, they are dismissed. No order as to costs.
Sd/-
JUDGE Cm/-